UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


PRACTICAL  TREATISE 

ON  THE 

LAW  OF  REPLEVIN 

IN  THE 

UNITED    STATES; 

WITH  AN 

APPENDIX  OF  FORMS, 

AND  A 

DIGEST  OF  STATUTES. 

BY 
PHINEAS  PEMBERTON  MORRIS. 


THIRD  AND  REVISED  EDITION. 


PHILADELPHIA: 
KAY  &  BROTHER,  17  AND  19  SOUTH  SIXTH  STREET, 

LAW  PUBLISHERS,  BOOKSELLERS,  AND  IMPORTERS. 

1878. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1849,  by 

JAMES  KAY  &  JOHN  I.  KAY,  trading  as  James  Kay,  Jux.,  &  Brother, 

In  the  Office  of  the  Clerk  of  the  District  Court  of  the  United  States,  in  and  for 
the  Eastern  District  of  Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1869,  by 

KAY  &  BROTHER, 

In  the  Office  of  the  Clerk  of  the  District  Court  of  the  United  States,  in  and  for 
the  Eastern  District  of  Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1878,  by 

KAY  &  BROTHER, 

in  the  Office  of  the  Librarian  of  Congress.    All  rights  reserved. 


^^'c.  m  imm 


PHILADELPHIA: 
COLLI  V  3,    PRINTER, 

705  Jayne  Stieet. 


PREFACE  TO  THE  THIRD  EDITION. 


A  THIRD  edition  of  the  Treatise  on  Replevin  has 
been  called  for  and  is  submitted  to  the  profession. 
It  incorporates  all  the  variations  which  adjudged 
cases  and  acts  of  the  legislature  have  introduced 
since  the  last  edition.  It  will  be  seen,  that  while 
this  remedy  has  been  deprived  of  one  of  its  most 
valuable  features  by  the  decision,  that  giving  a 
claim  property  bond  vests  the  property  ipso  facto 
in  the  defendant,  it  has  received  valuable  extension 
on  the  other  side  by  the  determination  that  the 
writ  may  be  successfully  used  to  retake  corn  or 
oil  or  other, fungible  commodities  of  the  plaintiff 
mixed  by  defendant  with  his  own  property  of  like 
nature,  so  that  the  very  article  delivered  is  not 
distinofuishable  from  the  mass. 


'O" 


It  also  appears  that  Justice  Willes,  in  the  Court 
of  Common  Pleas,  and  the  present  Master  of  the 


IV  PEEFACE    TO    THE    THIRD    EDITION". 

Rolls  have  quite  recently  held  that  the  property  m 
the  article  taken  is  not  changed  by  the  mere  fact 
that  judgment  has  been  obtained  for  the  value 
when  there  has  been  no  satisfaction — a  position 
taken  in  the  original  edition  of  this  book. 

P.  P.  MORRIS. 

May  27,  1878. 


PREFACE  TO  THE  SECOND  EDITION. 


A  SECOND  edition  of  the  Treatise  on  Replevin 
has  been  long  called  for.  It  is  now  presented  to 
the  public,  after  a  careful  re-examination  and 
correction  of  the  text,  and  comparison  of  the 
authorities.  The  cases  decided  since  1849  have 
been  examined,  and  whenever  any  new  point  has 
been  made,  or  an  old  one  received  fresh  illustration, 
the  case  has  been  added  to  the  list  of  citations, 
and  the  point  incorporated  in  the  text.  Some 
additional  explanations  of  matters  of  practice  have 
been  introduced,  which  it  is  hoped  will  render  the 
book  more  valuable  to  the  practising  lawyer.  The 
Massachusetts  and  l^ew  York  Statutes  printed  in 
the  Appendix  are  the  statutes  as  they  now  stand. 

P.  P.  MORRIS. 

August  3,  1869. 


PREFACE  TO  THE  FIRST  EDITION. 


There  is  no  part  of  the  law,  unblended  with 
public  jurisprudence  or  politics,  which  has  been 
more  obviously  improved  in  the  United  States  than 
Replevin.  From  the  cumbrous  weapon,  useful 
only  in  a  narrow  field,  to  which  Coke  and  Gilbert 
were  accustomed,  it  has,  in  more  than  one-half  of 
the  United  States,  been  fashioned  into  the  ready 
instrument  for  the  adjustment  of  all  disputes,  in 
regard  to  the  ownership  of  personal  propei'ty.  In 
some  of  the  States,  Pennsylvania,  for  instance,  this 
improvement  has  been  the  result  of  time,  operating 
upon  early  colonial  customs,  occasionally  assisted 
by  judicial  legislation. 

In  other  States,  indeed  in  most  of  the  Northern 
and  Western  States,  the  law  has  been  codified,  and 
the  improvements  which  experience  suggested,  in- 
troduced; the  framework  of  the  action  remaining 
unchanged. 

The  present  work  originated  in  the  difficulty 
which  the  author  experienced,  on  an  occasion  in 


Vlll  PKEFACE   TO    THE   FIRST   EDITION. 

which  he  was  called  upon  to  use  the  action  of 
replevin.  The  confused  and  unsatisfactory  form 
in  which  the  digests  and  reports  left  the  subject, 
was  not  essentially  relieved  by  a  reference  to  the 
elementary  writers.  There  is  no  American  treatise 
on  the  subject.  The  works  of  Gilbert  and  Wilkin- 
son, in  England,  have  attained  a  just  celebrity, 
and  are  well  known  in  the  United  States.  But, 
owing  partly  to  the  narrow  sphere  within  which 
the  remedy  is  confined  in  England,  and  partly  to 
the  dissimilarity  of  the  proceedings  in  the  two 
countries,  they  are  not  satisfactory  guides  to  the 
American  practitioner;  yet  much  of  the  learning 
which  they  contain  is  of  essential  value  here.  The 
author  has  been  a  diligent  seeker  at  the  fountains 
of  his  subject  in  the  English  law,  and  has  spared 
no  labor  in  the  exploration  of  the  many  branches 
from  the  main  stream  which  abound  in  the  United 
States,  and  has  used  the  information  thus  obtained, 
principally,  in  illustration  of  the  action  as  it  exists 
in  Pennsylvania. 

The  plan  pursued  will  be  understood  at  once  by 
a  glance  at  the  table  of  contents.  The  work  is 
divided  into  chapters,  in  each  of  which  a  different 
head  is  treated,  carrying  the  reader  from  the  issu- 
ing of  the  original  writ  to  the  execution ;  after 
which  follows  a  consideration  of  the  bond,  and  of 


PREFACE    TO    THE    FIRST    EDITION".  IX 

the  liabilities  and  benefits  accruing  to  the  different 
parties  thereto,  and  of  the  method  of  proceeding  on 
the  bond.  To  which  is  added  an  Appendix  of 
Forms  and  of  Statutes,  including  such  parts  of  the 
Code  of  Procedure  of  JSTew  York  as  bear  upon 
this  action,  and  the  chapter  of  the  Massachusetts 
Revised  Statutes  relating  to  Replevin;  which 
together  give  a  very  clear  idea  of  the  character  of 
the  changes  which  have  generally  been  introduced 
by  the  legislation  of  the  IS^orthern  and  "Western 
States. 

The  author  does  not  suppose  that  he  has 
exhausted  the  theme,  or  that  he  may  not  have 
fallen  into  errors ;  those  who  best  understand  the 
subject,  will  easily  comprehend  how  improbable  it 
is  that  he  should  have  done  either.  But  he  hopes 
and  believes,  that  he  has  placed  within  reach,  and 
in  a  connected  form,  information  which  cannot 
elsewhere  be  obtained,  but  at  the  expense  of  much 
time  and  labor. 

The  works  of  Gilbert  and  "Wilkinson  have  been 
freely  di-awn  upon,  and  Mr.  Hammond's  iN'isi  Prius 
has  furnished  some  valuable  rules  on  the  subject 
of  avowries. 

Philadelphia,  March,  1849. 


ERRATA. 

On  page  125,  note  4,  add  the  case  of  Reinheimer  v.  Heming- 
wa3",  11  Casey  432. 

On  page  155,  note  1,/or  Gundwin,  read  Gundrim,  3  W.  & 
S.  531. 

On  page  24t,  6th  line,/or  1799,  read  1779. 


CONTENTS. 


ble  of  Cases  Cited, 


XV 


Chapter  I. 

II. 

III. 

lY. 

y. 

YI. 

YII. 

YIII. 

IX. 

X. 

XI. 

XII. 
XIII. 
XIY. 

XY. 
XYI. 

XYII. 

XYIII. 
Appendix  L 


Replevin,  its  Origin  and  Histoiy, 

For  what  Replevin  will  lie, 

The  Writ  of  Replevin, 

The  Parties  in  Replevin,    . 

Of  the  Declaration,  .... 

Of  the  Pleas  in  Replevin, 

Of  the  Avowry,  .... 

The  Parties  to  an  Avowry, 

Of  the  Replication  and  of  Pleas  to  the 

Avowry, 

The  Trial,  Evidence,  etc.,  . 

Of  the  Judgment,      .... 

Of  the  Costs  in  Replevin, 

Of  the  Execution,      .... 

Of  the  Writ  de  Homine  Replegiando, 

Of  the  Replevin  Bond, 

Of  the  Declaration  and  Pleadings  in  th 

Action  on  the  Replevin  Bond, 
Of  the  Proceedings  against  the  Sheriff  for 

taking  insufficient  Pledges,  . 
Of  the  Claim  Property  Bond,  . 
Forms  of  Process. 

Praecipe, 


51 

76 
HO 
123 
128 
136 
150 
176 

179 
189 
213 
242 

248 
255 
266 

292 

297 
804 

815 


Xll 


CONTEXTS. 


Appendix  I.     Forms  of  Process. 

The  Writ  of  Replevin,   .         .         .         .316 
de  Homine  Replegiando,         .     316 
The  Replevin  Bond,  as  used  in  New  York 

under  the  Revised  Statutes,         .        .317 
The  Replevin  Bond  as  used  in  Pennsyl- 
vania,   319,  321,  322 

The  Claim  Property  Bond,     .      324,  326,  328 
The  Writ  of  Retorno  Habendo,      .         .329 
Notice  of  Claim  of  Property,          .         .     330 
Appendix  II.    Forms  of  Pleading. 

Declaration  in  the  Detinuit,  .         .     332 

Detinet,  .         .         .     333 
Detinuit  and  Detinet,  334 

Plea  non  cepit, 335 

cepit  in  alio  loco,  .         .         .     335 

admitting  Defendant  had  the  cattle 
in  the  locus  in  quo ;  but  took  them 
Damage  Feasant  in  another. 
Property  in  another,     . 
Statute  of  Limitations, 
Replication  to  Plea  of  the  Statute, 
Avowry'  or  Cognizance  for  rent,  . 
Suggestion  in  nature  of  an  Avowry  on 
a  Judgment  against  the  Plaintiff  by 
default,  for  want  of  a  Declaration,    . 
Plea  in  bar.  Traverse  of  the  Demise,   . 
no  Rent  in  Arrear,    . 

in  eviction, 

by  a  Lodger  in  a  Tavern  or  Board- 
ing-house, whose  goods  have 
been  distrained  for  rent  due  by 
the  tenant,  .        .         . 


33T 
338 
338 
339 
339 


341 
342 
343 
343 


344 


CONTEXTS. 


XUl 


Appendix  II.    Forms  of  Pleading. 

Avowry,  Damage  Feasant,  . 

Plea  in  bar,  tender  of  amends  before 

imponnding, 

Plea  in  bar,  denial  of  title,  . 

that  the  Cattle  escaped  through 
defect  of  Fences, 
Replication,  denial  of  liability  to  repair 

Fences, 

Replication,  denial  of  defect  of  Fences, 
Avowry   of    Distress,   for    arrears    of 

Ground-rent,     .         .         . 
Plea  in  bar  to  an  Avowry  for  Rent, 
that  Plaintiff  had  paid  an  equal  sum, 
to  the  original  Ground-rent  landlord, 
Avowry  by  one  Tenant  in  Common,    . 
Declaration  on  Replevin  Bond  against 
one  surety, 
against  Sheriff  for  taking 
insufficient      Securities, 
when  Replevin  was  not 
of  a  Distress, 
against  Sheriff  for  taking 
insufficient  Securities  in 
case  of  Distress,    . 
on    the    Claim     Property 
Bond,     .... 
Appendix  III     Statutes. 

English  Statutes. 

Statute  of  Marlbridge,     . 
of  Gloucester,     . 
Westminster  the  second,     . 
seventh  Henry  Eighth, 


345 

345 

34*7 

347 

349 
350 

351 

352 
354 

355 


361 


363 


367 


373 
373 
374 

378 


XIV 


CONTENTS. 


Appendix  III.    Statutes. 

English  Statutes. 

twenty -first  Henry  Eighth,     . 
fourth  James  First, 
seventeenth  Charles  Second,  . 
eleventh  George  Second, 
19th  and  20th  Victoria, 
23d  and  24th  Victoria,   . 
Pennsylvania  Statutes. 
Actofn-05,     . 
Act  of  21st  March,  17t2, 
3d  April,  1799,      . 
25th  March,  1825, 
16th  May,  1871,    . 
10th  April,  1873,  . 
Massachusetts  Statutes, 
New  York  Code. 

Title  V.    Of  the   manner  of  com- 
mencing Actions, 
VII.    Claim  and  delivery  of  Per- 
sonal Property,    . 


378 
381 
383 
38() 
388 
391 

392 
393 
399 
400 
402 
402 
403 


412 


414 


TABLE   OF  CASES. 


Abbott  V.  Barry, 
Abercrombie  u.  Parkburst, 
Ableman,  Booth  v.    . 
Abrams,  Halstead  v. 
Acker  v.  Finn,  . 
Acker  v.  Wetherill,   . 
Acton  V.  Blackwell,  . 
Adair,  Clark  v. 
Adams  v.  Bonghton, 
Adams  v.  Brindle, 
Adams  Express  Co.  v.  Taylor, 
Adams  v.  Dimcalf,     . 
Adams  v.  Grane, 
Adams  v.  LaComb,  . 
Adams,  Nightingale  v. 
Adams,  Noble  v. 
Adams,  Pattison  v.   . 
Adams,  Thornton  v. 
Ahman,  Zachrisson  v. 
Albany,  The  Peoyle  v. 
Albright  v.  Pickle,    . 
Aldridge  v.  Harper,  . 
Alexander  v.  Harris, 
Algar,  Hefford  u. 
Allen  V.  Darley, 
Allison,  Waltman  v. 
Amos  V.  Ginnett, 
Ancora  v.  Burns, 
Anderson  v.  Dunn, 


53,  21 


88,  20t 
142,  192,  168 
.  12T 
.  292 
.  285 
.  173 
.  213 
],  216,  218 
.  232 
.  210 

69,  269 
.  186 
.  181 
.  173 
.  101 

99,  20T 
.  129 
.  173 
80,  86 
.  93 
.  180 
294,  295 
.  195 
.  289 
.  232 
.  159 
.  291 
.  112 
.  145 


XVI  TABLE    OF    CASES. 

Anderson,  Bradbury  v 88 

Anderson,  Garner  v. 133 

Anderson  v.  Hapler, Gl, 10 6,  111 

Anderson  v.  Re3'nolds, 180 

Anderson  v.  Tallcott, 141 

Andrews,  Mountne}'  v 19t 

Andrews,  Mt.  Carbon  R.  R.  Co.  v 11 

Angell,  Banks  v 132,  158,  162 

Anstice  v.  Holmes, 141 

Applegate,  De  Bow  v 270 

Archer  v.  Dudley, 284 

Archer  v.  Hale, 295 

Armstrong,  Wright  v 53 

Arnold  v.  Bailey, 287 

Arnold  v.  Caldwell, 95 

Arnold,  McNeil  v 87 

Arnold,  Rogers  v 76,  125,  139,  141,  146 

Arter  v.  The  People, 271 

Arundell  v.  Trevill, 81,  123,  147 

Atkinson  v.  Holoomb, 116 

Aughenbaugh,  Warner  v.  ....      131,  132,  133 

Aurand,  Smith  u 221 

Auriol  V.  Mills, 164 

Austen  v.  Howard, 270,  285,  293 

Axford  V.  Perrett, 280,  286 

Aylesbury  v.  Harvey, 93 

Bacon,  Galvin  v 87 

Baddeley,  Hatchett  v 124 

Badger  v.  Phinney, 52,  81 

Badlam  v.  Tucker, 280 

Baer  v.  Martin, 77,53 

Bailey,  Arnold  v 287 

Bailey  v.  Bailey, 291 

Bailey  v.  Wright, 195 

Baird  v.  Potter, 152,  307 

Baker,  Butler  v 174 

Baker  v.  Pales, 52,  81 


TABLE   OF    CASES. 


XVll 


Baker  v.  Howel, 

Baldwin  v.  Cash, 

Baldwin,  Dame  v. 

Baldwin,  Marston  v. 

Baldwin,  Mellan  v. 

Baldwin,  Sawj'er  v. 

Baler  v.  Scott,   . 

Ball,  Bradyll  v. 

Balsley  v.  Hoffman, 

Bank  v.  Stubbs, 

Banks  v.  Angell, 

Banks  v.  Whetstone, 

Bardons,  Selby  v. 

Bargiss,  Gentry  v. 

Barker,  McFarland  v. 

Barkle  u.  Luce, 

Barnby,  Harrison  o. 

Barnes'  Appeal, 

Barnes  v.  Bartlett, 

Barnes  v.  BuUett, 

Barnes,  Chicago  Oil  and  Mining  Co.  v. 

Barnes  v.  Lucas, 

Barr  v.  Hughes, 

Barrage  v.  Melson, 

Barrett  v.  Forrester, 

Barrett  v.  Warren, 

Barry,  Abbott  v. 

Bartlett,  Barnes  v. 

Bartlett  v.  Bartlett, 

Bartlett,  Bell  v. 

Bartlett  v.  Gibbs,      212,  228,  269,  272,  218, 


Basset  v.  Manxel, 
Bastard,  Jeffrey  v.    . 
Bates  u.  Stedman, 
Baxter  v.  Graham,     . 
Baymore  v.  Souter,   . 
Beale's  Exr's  v.  Com., 
B 


.     105 
68,  112 
.       91 
52,  81 
.     137" 
.     109 
.     214 
248,  250 
210,  286,  287,  299 
.     125 
132,  158,  162 
.     100 
.     181 
189,  295 
.     192 
.     137 
170,  177 
.       92 
.       95 
.     125 
170,  193 
300,  302 
.     159 
.       54 
71,  212 
80,  86 
88,  207 
.       95 
.     291 
.     218 
288,  287,  295,  300, 
308 
.     169 
286,  299,  302 
.     176 
.     137 
.     209 
.     202 


xviu 


TABLE   or    CASES. 


Bean,  Hartley  v. 
Beaumont  v.  Wood, 
Beebe  v.  Du  Baun, 
Bell  V.  Bartlett, 
Bell  V.  North,    . 
Bell,  Vaiden  v. 
Bennett,  Eldred  v. 
Bennett,  Knight  v. 
Bennett  v.  Lockwood 
Bennett,  Wright  v. 
Berghoff  v.  Heckwolf, 
Betts  V.  Lee, 
Bevan,  Perreau  v. 
Bevans,  Galium  v. 
Beyer  v.  Fenstermacher, 
Bilson,  Cross  v. 
Bird,  Galloway  v. 
Bishop,  Livingston  v. 
Bigelow,  Rowley  v. 
Black  V.  Tricker, 
Blackmore  v.  King, 
Blaeknell,  Wharton  v. 
Blackwell  v.  Acton, 
Blades,  Hindle  v. 
Blain  v.  Sager,  . 
Blake,  Mennie  v. 
Blanchard,  Thurston 
Boileau,  Perry  ■u. 
Bond  V.  Bronson, 
Bond  V.  Mitchell, 
Bonner  v.  Coleman, 
Bonoyon  v.  Palmer, 
Bonsall  v.  Comly, 
Boot  V.  Wilson, 
Booth  V.  Ableman, 
Bough  ton,  Adams  v. 
Boughton  V.  Bruce, 
Bourk  V.  Riggs, 


.  244 

.  164 
.  16 
.  218 
.  84 
.  53 
.  307 
.  195 
210,  213 
.  125 
.  212 
.  100 

2T2,  279,  293,  295,  299,  300 
52,  190 
.  180 
.  141 
81,85 
.  235 
89,  98,  208 
.  124 
.  203 
.  291 
.  213 
.  299 
.  100 
76,  85 
.  91 
.  124 
.  208 
.  133 
.  219 
.  176 
.  92 
.  164 
.  127 
.  232 
76,  78,  86 
.  217 


TABLE   OF   CASES 


Bovej,  Sir  R.'s  Case, 
Bower  v.  Tallman, 
Bowles,  Coan  v. 
Bowles,  Cowne  v. 
Bowles  V.  Poor, 
Bowmaker,  Moore  v. 
Boyce,  Shepherd  v. 
Bojd,  Keite  v.  . 
Boj'd  u.  Phipps, 
Boj'le  ex  parte, 
Boyson  v.  Coles, 
Bradbury  v.  Anderson, 
Bradley  v.  Michael, 
Bradle}^,  Potten  v. 
Bradley  v.  Van  Namee, 
Brady,  Jameson's  Ex'rs  v. 
Bradyll  v.  Ball, 
Brander,  Evans  v. 
Branscomb  u.  Scarborough, 
Branscomb,  Wheeler  v. 
Bratton  v.  Mitchell,  . 
Brayton,  Paget  v. 
Brewer  v.  Fleming,    . 
Brewster's  Admr's  v.  Sterrett, 
Brewster,  Lloyd  v.    . 
Brewster  v.  Silliman, 
Brierly,  Ormond  v.    . 
Briggs,  Emmett  v.     . 
Brightly,  Cook  v. 
•Brindle  v.  Adams,     . 
Brisben  v.  Wilson,     . 
Brinsmead  v.  Harrison, 
Bristow  V.  Wright,    . 
Brizsee  v.  Maj^bee,    . 
Broadwater  v.  Dame, 
Bronson,  Bond  v. 
Brooke  v.  Willet, 
Broom  v.  Fox, 


XIX 


68, 

76,  78,112,  209 

.  178 

.  186 

.  173 

.  278,  294 

.  171 

.  137 

.  159 

.  272,  279 

.   95 

.   88 

.   77 

.  129 

78,  143 

.  124 

.  248,  250 

61,  133,  286 

.  286,  288 

.  179 

.  137 

.  133 

.  106 

.  296 

.   97 

.  304 

.  283 

.  206 

.  166 

.  210 

.  121 

.  232,  239 

.  164 

.  287 

.   77 

t. 

.  208 

.  246 

.  212,216 

XX 


TABLE   or   CASES. 


Broughton  v.  Adams, 
Brown  v.  Caldwell, 
Brown  v.  Fitz,  . 
Brown  v.  Freed, 
Brown,  Henkels  u. 
Brown  v.  Parker, 
Brown  v.  Sax,   . 
Brown  v.  Sims, 
Brown,  Wliite  v. 
Browne  v.  Dunnery, 
Browne,  Floyd  v, 
Browne  v.  Powell, 
Browne  v.  Sayce, 
Browne,  Watton  v. 
Browning,  M'Gill  v. 

Bruce,  Bougliton  v. 

Br  lien,  Ogden  v. 

Briiner  v.  Dyball, 

Buck,  Colbath  v. 

Buck  V.  Pickering, 

Buckeridge,  Long  u. 

Buckley,  Ingalls  v. 

Bnffington,  Gerrish  i 

Bulpit,  Clarke  v. 

Bulkley,  Handy  u. 

Bull,  Gibbs  V.    . 

Bull  V.  Sibbs,    . 

Buller,  Gurney  v. 

Bullet,  Barnes  v. 

Bunning,  Hill  v. 

Biuch,  Mitchell  v. 

Burkhalter,  Rockey 

Burkhardt,  Lovett  v 

Burley,  Carlisle  v. 

Burn,  Mattaine  v. 

Burwell,  Groenvelt  v 

Burns,  Ancora  v. 

Burr,  Yanbuskirk  v. 


89, 


.  232 
.  117 
.   52 

.  264 
.  181 
.  278 
.  100 
.  181 
.   87 
.  173 
.  235 
.  205 
158,  170,  193 
.  232 
.   91 
76,  78,  86 
.   53 
.   71 
.  127 
.  192 
.  212 
.   86 
97,  207,  208 
.  155 
.  210 
.  301 
.  164 
.  244 
.  125 
.  128 
.  213 
.  307 
122,  209 
.  235 
.  115 
.  174 
.  112 
.  173 


TABLE    OF    CASES. 


XXI 


Barrage  v.  Nelson, 
Butcher,  Porter  v. 
Butcher,  Chapman  u 
Butler,  Baker  v. 
Button,  Thompson  v 
Byrd,  O'Hanlin  v. 
Bj-rne,  Stockwell  v. 
Byrt,  Hallett  v. 

Cable  V.  Dakin, 
Cady  V.  Eggleston, 
Cahoon,  Tibbal  v. 
Caldwell  v.  Arnold, 
Caldwell,  Brown  v. 
Caldwell  v.  Cleadon, 
Caldwell  v.  Gans, 
Campbell,  Gardner  v 
Campbell  v.  Phelps, 
Carlisle  v.  Burley,     . 
Carpenter  v.  Stevens, 
Carrington,  Ferguson  v. 
Carroll  v.  Harris. 
Case  V.  Pettee, 
Cash,  Baldwin  v. 
Caulk,  Warner  v. 
Cayward  v.  Doolittle, 
Certain  Logs  of  Mahogany, 
Chaffee  o.  Sangston, 
Chamberlain  ex  parte, 
Chamberlin,  Woodburn  v. 
Chambliss,  Cleaton  v. 
Chambers,  George  v. 
Chambers,  Hunt  v.    . 
Chambers  v.  Hunt,    . 
Chambers,  Kensil  v. 
Chaney,  Mikesill  v.   . 
Chapin,  Pearsall  v.    . 
Chaplen,  Haselip  v.  . 
Chapman  v.  Butcher, 


.       54 

139,  280 

280 

lU 

94 

53 

296 

55, 118 


211,  213,214 
270 

245,  283,  285^ 
95 

in 

216 
122 

94 

235 

235 

295 

207 

143,  191 

.     270 

68,  112 

180,  181 

.     113 

.     102 

306,  307 

.       81 

.     213 

.     209 

81,  92 

76,  141 

77 

158 

71 

91' 

213 

280 


xxu 


TABLE    OF    CASES. 


Chapman  v.  Cluck,    . 

. 

.     195 

Chaustelleux,  Faircbild  v. 

.     123 

Chevalier,  Rector  v.           .         .        . 

.       53 

Chicago  Oil  Mining  Co.  v. 

Barnes,   . 

110,  193 

Chichester,  Crofut  v. 

.     231 

Childs  V.  Hart, 

.     133 

Chinn  v.  Russel, 

53,76 

Chuck,  Page  v. 

.     193 

City  V.  Price,    . 

.     285 

Claggett  V.  Richard, 

.     270 

Clap  V.  Guild,    . 

.    270 

'^Clappin  V.  Thayer,    . 

.     272 

Clark  0.  Adair, 

)3,  21 

1,  216,  218 

Clark,  Collier  v. 

.     191 

Clark  V.  Connecticut 

.     270 

Clark,  Hale  v.   . 

.       84 

Clark  V.  Keith, 

221,  247 

Clark,  Myers  v. 

2S 

7,  300,  302 

Clark  V.  Neville, 

.     109 

Clark,  Phenix  v. 

.     113 

Clark  V.  Skinner, 

.     122 

Clark,  Shipman  v.     . 

.     118 

Clarke,  Bulpit  v. 

.     155 

Clay  V.  Ins.  Co., 

.     180 

Cleadon,  Caldwell  v. 

.     216 

Cleaton  v.  Charabliss, 

.     209 

Clement  v.  Wright,  . 

.     106 

Clemson  v.  Davidson, 

.     190,  206 

Clerk  V.  Withers,       . 

.     197 

Cliptam,  Moore  v.     . 

.     115 

Cluck,  Chapman  v.    . 

.     195 

Coan  V.  Bowles, 

.     178 

Coble  V.  Nonemakei", 

.    207 

Cochran,  Finney  v.    . 

.    296 

Cockley  v.  Pagrave, 

.     128 

Coffin,  Everett  v. 

.        .    ,97 

Coit  V.  Waples, 

.      53 

Colbath,  Buck  v. 

.    127 

TABLE    OF    CASES. 


XXlll 


Colburn,  Knapp  v.     . 

Cole,  Combes  v.         .         .        . 

Coleman,  Bonner  v.  . 

Coleman,  Weiler  v.   . 

Coles,  Boj'son  v.        .        .        . 

Coles,  Glover  v.         .        .        . 

College  of  Physicians,  Greenville  v. 

Collier  v.  Clark, 

Collier,  Wliitesides  v. 

Collins  V.  Evans, 

Collins,  Lindon  v.      .        .        . 

Collins,  Towne  u.       . 

Colstone  v.  Hiscolls, 

Colville,  Twells  v.      .         .        . 

Colquhon,  Innes  v.    . 

Combes  v.  Cole, 

Comley,  Bonsall  v.    . 

Commonwealth,  Beale's  Executors  u 

Commonwealth  v.  Kinnard, 

Commonwealth,  Meyers  v. 

Commonwealth  v.  Rees,    . 

Commonwealth  v.  Thompson, 

Concanen  v.  Lethbridge,   . 

Concannon,  Jones  v. 

Connecticut,  Clark  v. 

Conner  v.  Comstock, 

Conoway,  Lambden  v. 

Cook  V.  Brightly, 

Cook  V.  Green, 

Cookson,  Duke  of  Somerset  v 

Cooley  V.  Davis, 

Cooper  V.  Egginton, 

Cooper  V.  Sherbrooke, 

Cope,  Hunt  v.    . 

Corbett  v.  Lewis, 

Cosens,  Gulliver  v. 

Cossey  v.  Diggons, 

Coursey  v.  Wright, 


285,  301 
.  273 
.  219 


.  206 

.  95 

.  292 

.  175 

.  191 

.  125 

.  77 

.  155 

.  91 

.  189 

.  297 

.  158 

.  273 

.  92 

.  202 

.  121 

.  298 
281,  298 

.  299 

.  287 

.  212 

.  270 
87,  90 

.  270 


.  166 

.  246 

.  241 

.  94 

.  189 

.  274 

.  186 

.  106 

.  81 
158,  170,*193,  205 

.  94 


XXIV 


TABLE   OF   CASES. 


Covenhoven  v.  Seaman,     . 

Cowel,  Leominster  Canal  Company  u 

Cowne  V.  Bowles, 

Cowperthwaite,  Oxley  v. 

Cowperthwaite,  Wolgan  v 

Cox  V.  Grace,     . 

Cozzens,  Wheeloek  v. 

Craig  V.  Kline,  . 

Crain,  Finehout  v.     . 

Cratzenburg,  McClaughrey  v. 

Cresson  v.  Stout, 

Crockett,  Smith  v.     . 

Crofut  V.  Chichester, 

Crogate's  Case, 

Cromwell  v.  0 wings, 

Crosby,  Page  v. 

Cross  V.  Bilson, 

Cross  V.  Peters, 

Cross,  Thompson  v.  . 

Crowther  v.  Ramsbottom, 

Cruikshank,  Gibbs  v. 

Crutchle}',  Selbey  v. 

Cullum  V.  Bevans, 

Cully  V.  Spearman,    . 

Cummings  v.  Gann,  . 

Currier,  Greely  v. 

Curtis  V.  Grout, 

Curtis,  Poltz  V. 

Curtis  V.  Wheeler,     . 

Cushman,  Warner  u. 

Daggett  V.  Robbins, 
Dakin,  Cable  v. 
Dalbrow,  English  v. 
Dally  V.  Silly,    . 
Dame  v.  Baldwin, 
Dame,  Broadwater  v. 
Daniels  v.  Fitch, 


21 


259 

244 

186 

300 

248 

58 

54 

211 

111 

Yt 

105 

54 

231 

181 

52 

86 

141 

97 

137 

175 

204,  210 

247 

52,  190 

177 

272,  298 

271 

235 

212 

189 

101 

53,  71 

1,213,  214 

120 

184 

91 

77 

307 

TABLE   OF   CASES. 


XXV 


Parley,  Allen  v. 

.     232 

Darling,  Sanders  v.    . 

.     302 

Darlington,  Spencer  v. 

.     105 

Dart  0.  Howe    . 

.     130 

Dauch,  Robinson  v.  . 

.       98 

Dauphin  Bank,  Roberts  v 

.       76,  105 

Davidson,  Clemson  v. 

.     190,  206 

Davies  v.  James, 

.     245 

Davies,  Miller  v. 

.     118 

Davis,  Cooley  v. 

.       94 

Davis  V.  Easley, 

.     106 

Davis  V.  Gyde, 

.     195 

Davis,  Macclesfield  v. 

.     241 

Davis,  Onnsbee  v. 

.       53 

Dawson,  Rong  v. 

.       53 

Day,  Martin  v.  . 

.     147 

Day,  Maxham  v. 

.      77 

Deacon,  Wright  v.     . 

.     261 

De  Bow  V.  Applegate, 

.     270 

Decker  v.  Livingston, 

.     125 

Delabastide  v.  Reynell, 

69,  258 

Delancey,  Little  v.     . 

.     202 

Delaney  v.  Fox, 

.     185 

De  Mott  V.  Hagerman, 

105,  108 

Denio,  Hill  v.    . 

.     129 

Denton,  Hutton  v.     . 

.     294 

Depe^'ster,  Wheelwright  v 

91,  97 

Devine  ex  parte. 

.     248 

Devoy,  Skidmore  v. 

.     145 

De  Witt  V.  Morris,    . 

.     115 

De  Witt,  Morris  v.    . 

.     122 

De  Wolf  V.  Harris,   . 

125,  139 

Dias  V.  Freeman, 

.     292 

Diggons,  Cossey  v.    . 

15 

8,  n 

0,  193,  205 

Dillinger,  Mackey  v. 

.     182 

Dimcalf,  Adams  v.     . 

.     186 

Dingley,  Seaver  v. 

52,  86,  ST,  133 

Dobbinson,  Philpot  v. 

.     158 

XXVI 


TABLE    OF    OASES. 


Dodd  V.  Joddrell, 

Dodge,  Jones  v. 

Doe  V.  Oliver,    . 

Donnelly  v.  Dunn,     . 

Doolittle,  Cayward  v. 

Dorsey  v.  Gassaway, 

Drake  v.  Mitchell, 

Drnmmond  v.  Hopper, 

Du  Baun,  Beebe  u.    . 

Dudley,  Archer  v. 

Duke,  Peter  u.  . 

Drake  ex  parte  in  re  Ware, 

Duke  of  Somerset  v.  Cookson, 

Dunbar  v.  Dunn, 

Dunham  v.  "Wj'ckoff, 

Dunk  V.  Hunter, 

Dunkin  v.  McKee,     . 

Dunn,  Anderson  v.    . 

Dunnery,  Browne  v. 

D wight  V.  Enos, 

Dyball,  Bruner  v. 

Dyer  v.  Pearson, 

Eagleton,  Thompson  u. 
Earner,  Page  v. 
Earl  of  Bristol  v.  Wilsmore, 
Earl  of  Macclesfield  v.  Davis, 
Easley,  Davis  v. 
Easton  v.  Worthington, 
Eaton  V.  Southb}', 
Edmonds,  Lear  v. 
Edwards,  Etter  v. 
Edwards,  Rider  v.     . 
Edwards,  Vasper  v.  . 
Egginton,  Cooper  v. 
Eggleston,  Cady  v.    . 
Ehle,  Ely  v. 
Eldred  u.  Bennett,     . 


21 


4,2 


91,  2 


1.2 


.  246 

.  133 

.  185 

.  295 

.  113 

.  210 

.  234 
53,  85 

.  76 

.  284 

.  165 

20,  232,  239 

.  241 

69,  270,  273 

.  94 

.  194 

.  77 

.  145 

.  178 

.  217 

.  71 

.  95 

.  214 

.  284 
88,  207 
.  241 
.  106 
4,  216,  217 
.  105 
72,  195 
.  214 
.  270 
75,  199 
.  189 
.  270 
77,  143,  192 
.  307 


TABLE    OF    CASES. 


XXVll 


Elliott,  Evans  v. 
Elliott  V.  Potter, 
Elliott  V.  Powell, 
Ellsey,  Lake  Shore  &  M. 
Elwood,  Johnson  v. 
Ely  V.  Ehle, 
Emmerson,  Ingersoll 
Emmett  v.  Brig-gs, 
England  v.  Slade, 
English  V.  Dalbrow, 
Enos,  Dwight  v. 
Epperly,  Noble  v. 
Etter  V.  Edwards, 
Evans  v.  Brander, 
Everett  u.  Coffin, 
Evans,  Collins  v. 
Evans  v.  Elliott, 
Ewing  V.  Yanarsdall, 
Ex  parte  Boyle, 
Ex  parte  Chamberlain, 
Ex  parte  Devine, 
Ex  fjarte  Drake  re  Ware, 
Ex  parte  Lawrence, 

Faget  V.  Brayton, 
Fairchild  v.  Chaustelleiix 
Fairman  v.  Fluck, 
Fales,  Baker  v. 
Farley  v.  Lincoln, 
Farvell  u.  Keightly, 
Felt,  McLees  v. 
Fells  V.  Read,    . 
Fenstermaeher,  Beyer  v. 
Ferguson  v.  Carrington, 
Fernie,  Huckman  v. 
Ferrers,  Schofield  v. 
Finch,  Slie  v.     . 
Findley,  Heaton  v.    . 


Railway  Co.  v. 


4,2 


81 

,  85 

. 

235 

.  106, 

IIT 

. 

TT 

. 

108 

IT,  143, 

192 

.    , 

206 

, 

206 

.  182, 

194 

.   6T, 

120 

. 

21T 

, 

210 

. 

214 

61,  133, 

286 

, 

9T 

. 

TT 

8] 

1,85 

.  193, 

no 

.  2T2, 

2T9 

, 

81 

,    , 

248 

20,  232, 

239 

. 

261 

133 

. 

123 

80,  181, 

204 

5 

2,81 

,    . 

89 

, 

243 

, 

148 

.    , 

241 

. 

180 

. 

20T 

. 

191 

.  210 

220 

. 

19T 

. 

106 

XXVIU 


TABLE   OF    CASES. 


Finehout  v.  Grain, 
Finn,  Acker  v. 
Finney  v.  Cochran, 
Fisher  v.  Whoollery. 
Fitch,  Daniels  v. 
Filler,  Kneas  u. 
Fitz,  Brown  v.  . 
Fitzhugh  V.  W^'man 
Fitzgerald,  Hart  v. 
Fleet,  Skinner  v. 
Fleming,  Brewer  v. 
Fletcher  v.  Marillier 
Fletcher,  Sapsford  v 
Flickwise,  Rush  v. 
Floyd  V.  Browne, 
Fluck,  Fairman  v. 
Folkrod,  Muck  v. 
Foresraan,  Shery  v. 
Forney,  Warren  v. 
Forrester,  Barrett  v. 

Forsyth,  Stone  v. 

Forty  V.  Imber, 

Fosset,  Maltravers  x 

Foster,  Porter  v. 

Foster,  Winnard  v. 

Foutz,  Miller  v. 

Fox,  Broom  v.  . 

Fox,  Delaney  v. 

Fox,  Judd  V. 

Fox,  Staniforth  v. 

Fox  V.  Northern  Liberties 

Franciscus  v.  Reigart, 

Frazer  v.  Fredericks, 

Freed,  Brown  v. 

Freedenburg  v.  Meeter, 

Frederick,  Simcoke  v. 

Fredericks,  Frazer  v. 

Freeman,  Dias  v. 


.  Ill 

.  285 
.  296 
214,  241,  307 
.  307 
114,  115 
.  52 
.  217 
124,  125 
.  258 
.  106 
.  173 
183,  353 
.  204 
.  235 
180,  181,  204 
.  129 
.  294 
.  195 
71,212 
.  246 
158,  170,  193 
.  142 
.  89 
.  221 
.  307 
212,  217 
.  185 
.  94 
.  195 
.  237 
155,  158,  166,  271 
.  214 
.  264 
.  289 
151,  187,  190,  206 
.  214 
.  292 


TABLE   OF    CASES. 


XXIX 


Freeman  v.  Howe, 
Freeman,  Low  v. 
French  v.  Kent, 
French,  Root  v. 
Frey  v.  Leeper, 
Frisby  v.  Thayer, 
Fritz,  Sands  u. 
Frost  V.  Lowr^', 
Fry,  Matlock  v. 
Furguson  v.  Thomas, 


Gainsforcl  v.  Griffith, 

Gallillee,  Turner  v.    . 

Galloway  u.  Bird, 

Galvin  v.  Bacon, 

Gamon  v.  Jones, 

Gandall,  Howard  v. 

Gandall,  Pike  v. 

Gann,  Curamings  v. 

Gans,  Caldwell  v. 

Garden,  White  v. 

Garder  v.  Campbell, 

Gardiner  v.  Humphrey, 

Gardner  v.  Lane, 

Gardner,  Musser  v.    . 

Gargrave  v.  Smith,    . 

Garner  v.  Anderson, 

Gassaway,  Dorsey  v. 

Gates  V.  Lownsbury, 

Gentry  v.  Bargiss, 

George  u.  Chambers, 

Gerrish,  Buffington  v. 

Gibbs  V.  Bartlett,      212,  228,  269,  272,  278, 


Gibbs  V.  Bull,    . 
Gibbs  V.  Cruikshank, 
Gildart,  Tesseyman  v. 
Gilmore,  Hall  v. 


.  127 
.  101 
.  171 

97,207 
.  248 
.  173 

283,  284 
.  91 
.  109 

.   77 

.  286 

.  243 

81,  85 

.   87 

.  228 

.   92 

.  151 

272,  298 

.  122 

.   99 

.   94 

.  128 

.  115 

.  124 

.   87 

.  133 

.  210 

.   84 

189,  29a 

81,  92 

89,  97,207,208 

283,  287,  295,  300, 

308 

.  301 

.  204, 210 

.  297 

.   98 


XXX  TABLE    OF    CASES. 

Gingell  v,  TurnbuU, 288,  290,  306 

Ginnett,  Amos  v 291 

Ginrich,  Walter  u 296 

Ginther,  Saltzer  v .        .271 

Given,  Williams  v 98 

Giover  v.  Coles,         . 292 

Godfrey's  Case, lU 

Good,  Musser  v 245 

Goodluek,  Paul  v 286 

Gordon  v.  Harper, 76 

Gordon,  Hucker  v 301 

Gordon  v.  Jennej, 210 

Gould,  Lee  v 77 

Gould  V.  Warner, 272,  288,  289 

Gowen  v.  Ludlow, 63 

Grace,  Cox  v 53 

Graham,  Baxter  v.     .         .         .         .         .         .         .         .137 

Grane,  Adams  v 181 

Graj,  Mayser  v 250 

Gray  v.  Nathans, 192 

Gray,  Wilson  v.         .         .         .        125,  131,  189,  141,  145,  146 

Greely  V.  Currier, 271 

Green,  Cook  v. 247 

Green,  Kindy  v 125 

Green,  Load  v, 99 

Green,  Osgood  v 76 

Green,  Penrose  -u.      .......         .     209 

Green  v.  Walter, 271 

Greenville  v.  College  of  Physicians,  .         .         .         .175 

Gresham  Life  Insurance  Company,  Leete  v,     .        .        .     191 

Griffith,  Gainsford  v 286 

Griffith,  Morgan  v 277 

Griffith,  Stiles  v 93 

Groenvelt  v.  Burwell, 174 

Grout,  Curtis  v 235 

Guild,  Clap  v 270 

Gulliver  y.  Cosens, .       81 

Gundrim,  Jones  i; 155,  177 


TABLE   OF   CASES 


Gundy,  Roland  v. 
Gurney  v.  Buller, 
Gwillim  V.  Holbrook, 
Gwyllim  v.  Scholey, 
Gyde,  Davis  v. 

Hagerman,  De  Mott  v. 

Haight,  Peterson  v. 

Hale,  Archer  v. 

Hale  V.  Clark,    . 

Hale,  Pitts  v.    . 

Hall  V.  Gilraore, 

Hall,  Lowry  v. 

Hall,  Quincy  v. 

Hall  V.  White,  . 

Hallett  V.  Byrt, 

Hallett  V.  Mountstephon, 

Halstead  v.  Abrams, 

Hamerton  v.  Stead,    . 

Hamilton  v.  The  Singer  Manuf, 

Hand,  Palmer  v. 

Handy,  Buckley  v.    . 

Hanford  v.  Obrecht, 

Hanna  v.  Steinberger, 

Hanson,  Jackson  v,  . 

Hapler,  Anderson  v. 

Hardy  v.  Metzgar,     . 

Hargrave  v,  Sherwin, 

Harlan  v.  Harlan, 

Harrel,  Postman  v.   . 

Harriman,  Schulenburg  v 

Harris,  Alexander  v. 

Harris,  Carroll  v. 

Harris,  De  Wolf  v.   . 

Harris,  Phillips  v. 

Harris  v.  Smith, 

Harrison  v.  Barnby, 

Harrison  v.  Brinsmead, 


Co. 


XXXI 

90,91 
.     244 

.  280 
.  302 
.     195 

105,  108 

.     180 

.     295 

.       84 

.     13t 

.       98 

122,  209 

.     145 

.     126 

55,  118 

.     284 

.     292 

.     195 

.       87 

'.     207 

.     210 

.     217 

.       95 

272,  279 

61,  106 

.     214 

.     193 

76,  108 

.     173 

.     101 

.     195 

143,  191 

125,  139 

95,  214 

77,  98,  125 

158,  170,  177 

.     232,  239 


XXXll  TABLE    or    CASES. 

Harrison  v.  M'Intosh,       ....       139,  184,  185,  187 

Harrison  v.  Wardle, 280,  286 

Harrod  v.  Hill, 220 

Harper,  Aldridge  v. ■    294 

Harper,  Gordon  v 76 

Hartop,  Simpson  v. 181 

Harve}',  Aj'lesbury  v 93 

Hart,  Child  v 133 

Hart  u.  Fitzgerald, 124,  125 

Hartley  v.  Bean, 244 

Haselip  v.  Chaplen, 243 

Haswell,  Hay  ward  v. 194 

Hastings,  Pilkington  v 205 

Hatchet  v.  Baddeley, 124 

Hayes  u.  Lusby, 113 

Hays  V.  Mouille, 92 

Hay  thorn  u.  Rushford, 77 

Hay  ward  v.  Haswell, 194 

Hazlett  V.  Powel, 180 

Heacock  v.  Walker, 91 

Head,  Meany  v. 81 

Heaton  v.  Findley, 106 

Heckwolf,  Berghoff  v 212 

Hefford  v.  Alger, 289 

Hegan  v.  Johnson, .194 

Heilbrenner,  Reist  v. 137 

Hellings  u.  Wright, 109,  151 

Hemingway,  Reinheimer  v 125,  191 

Henderson  v.  Lauck, 98,  101 

Henkels  v.  Brown, 181 

Henley,  Ward  u 289 

Henston,  Snelgar  u. 172 

Hepburn  v.  Sewell, 235 

Hepworth,  Lambert  v 174 

Herdic,  Young  t; 106,211 

Hewson  v.  Hunt, 53 

Hicks  V.  McBride, 307,  306 

Hicks,  Treverton  u 165 


TABLE    OF    CASES.  XXXUl 

Hilcleburn  v.  Nathans, 99,  148 

Hill  V.  Bunning, 128 

Hill  V.  Deuio, 129 

Hill,  Han-od  v 220 

Hill,  Keyworth  v 232 

Hill  V.  Miller, 180,  182,  194,  195 

Hill  V.  Perrott, 88 

Hill  V.  Stocking,        .        . 1T3 

Hill,  Weed  v 148 

Hindle  u.  Blades, 299 

Hinsdale,  Powel  v 221,  247 

Hirst  V.  Moss, ^     112 

Hiscolls,  Colstone  v. 189 

Hixon,  The  Southern  Plank  Road  v 109 

Hooker  v.  Striker, 305 

Hodgden  v  Hubbard, 207 

Hoffman,  Balsleyi). 210,286,299 

Holbrook,  Gwillim  v 280 

Holcomb,  Atkinson  v 116 

HoUings worth  v.  Napier, 97 

Holmes,  Anstice  v 14l 

Holmes  v.  Wood, 143 

Holt  u.  Sambach, 171 

Hopkins  v.  Hopkins,         ....       181,  187,  213,  214 

Hopler,  Anderson  v. 106,  111 

Hopper  V.  Drummond, 53,  85 

Horsford  v.  Webster, 181 

Hosack  V.  Weaver, 91,  214 

Hoskins  v.  Robins, 130 

Hotchkiss  V.  Jones, 213 

Houre,  King  v.  ........     232 

Howard  v.  Johnson, 228 

Howard,  Austen  v 270,  285,  294 

Howard  v.  Gandall .92 

Howe,  Dart  i; 130 

Howe,  Freeman  v 127 

Howe,  Johnson  v 217 

Howel,  Baker  v. 105 

C 


XXXIV 


TABLE   OF    CASES. 


Hoyt,  Reece  v. 
Hubbard,  Hoclgden  v. 
Hubbard,  Short  v. 
Huber,  Shearick  v.     . 
Hucker  v.  Gordon,    . 
Huckman  v.  Fernie, 
Hudd  V.  Raveuor, 
Hudleston  v.  Johnstone, 
Hudson  River  I.  &  M.  Co 
Huebschmann  v.  McHenr}' 
Hughes,  Barr  v. 
Humphrey,  Gardiner  v. 
Humphrey,  Peer  v.    . 
Humphreys,  Pearce  v. 
Hungerford  v.  Redford, 
Hunt,  Chambers  v.    . 
Hunt  V.  Chambers,    . 
Hunt  V.  Cope,    . 
Hunt,  Hewson  v. 
Hunt,  Johnson  v. 
Hunt  V.  Round, 
Hunt  V.  Strew, 
Hunter,  Dunk  v. 
Hunter  v.  Hudson  River 
Huntington,  Smith  v. 
Hutchinson,  Read  v. 
Hutter,  Trapnall  v.    . 
Hutton  V.  Denton,     . 
Hyde,  Phillips  v. 

Isley  V.  Stubbs, 
Iraber,  Forty  v. 
Ingalls  V.  Bulkley,    . 
Ingersoll  v.  Sergeant, 
IngersoU  v.  Emmerson, 
Ingersoll,  Naglee  v.  . 
Innes  v.  Colquhon,    . 
Irving  V.  Motley, 


,  Hunter 


&  M.  Co 


16,  14 


125 

207 

155,  269,  271,306 
.  77,  78,  92,  127 
301 
191 
[2,  180,  195 
158 

98 
105 
159 
128 
207 
77,  78,  298,  305 
106 

77 

1,  206 

186 

53 

76 
289 

77 
194 

98 

93 
207 

76 
294 
192 

81,  127 

158,  170,  193 

.   86 

.  158 

206 

185,  186 

.  158 

95,  99,  207 


TABLE   OF    CASES 


Jackson  v.  Hanson,  . 

Jackson  v.  Rogers,    . 

Jacob  V.  King,  . 

Jacobson  v.  Lee, 

James,  Davies  v. 

James  v.  Moody, 

Jameson's  Exs.  v.  Brady, 

Jeffrey  v.  Bastard,     . 

Jenkins,  John  v. 

Jenkins  v.  Steanka,   . 

Jenney,  Gordon  v. 

Jennings,  State  v. 

Joddrell,  Dodd  v. 

John  V.  Jenkins, 

Johnson  v.  Elwood,  . 

Johnson,  Hegan  v.    . 

Johnson,  Howard  v. 

Johnson  v.  Howe, 

Johnson  v.  Huddleston, 
Johnson  v.  Hunt, 
Johnson  v.  Johnson, 
Johnson  v.  Jones, 
Johnson,  Lamb  v. 
Johnson  v.  Lawson,  . 
Johnson  v.  Medtart, 
Johnson  v.  Neale, 
Johnson  v.  Peck, 
Johnson  v.  Wollj^er, 
Jones  V.  Concannon, 
Jones  V.  Dodge, 
Jones,  Gamon  v. 
Jones  V.  Gundrim, 
Jones  V.  Hotchkiss, 
Jones,  Johnson  v. 
Jones  V.  Kitchen, 
Jones  V.  Morris, 
Jones,  Whiteman  v. 
Judd  V.  Fox, 


19^ 


XXXV 

272,  279 
128 
121 
81 
245 
231 
124 

286,  299,  302 
179 
210 
210 
52,  121 
246 
179 
108 
194 
228 
)2,  217 
158 
76 
53 
183 
127 
244 
265 
206 
90,  98 
116,  192 
.  212 
.  138 
.  228 
155,  177 
.  213 
.  183 
167,  181 
180,  181,  204 
269 
94 


XXXVl  TABLE    OP    CASES.  * 

Karns  v.  McKinnej'', 204 

Keightly,  Farvell  v 243 

Keite  v.  Boyd, '137 

Keith,  Clark  v 221,  247 

Kellerman,  Lehman -u 106,107 

Kerapster  v.  Nelson, 132 

Kenney  v.  Simpson, 129 

Kensil  v.  Chambers, 158 

Kent,  French  v. ,         .     171 

Kersop,  Walton  v 129,  142,  192 

Kessler  v.  M'Conachy, 137,  204 

Kessler,  M'Conachy  v 204 

Keyworth  v.  Hill, 232 

Kilby  V.  Wilson, 88 

Kilday,  Mead  v 77 

Kimball,  Willard  v 92 

Kimball,  Young  v 77 

Kimmel  v.  Kint, 277 

Kindar  v.  Shaw, 97 

Kindy  v.  Green,         .         .         .         .         .         .         .         .125 

King  V.  Blackmore, 203 

King  V.  Houre, 232 

King  V.  Orser, 121 

King,  Jacob  v. 121 

King  V.  Ramsey, 217 

Kinnard,  Commonwealth  v.       .         .        .         .         .        .     121 

Kint,  Kimmel  v 277 

Kitchen,  Jones  v 167,  185 

Kitchen,  Robins  v 182,  194 

Kline,  Craig  v.  .        . 211 

Knapp  V.  Colburn, 285,  301 

Kneas  v.  Fitler, 114,  115 

Knight  V.  Bennett, 195 

Knight  V.  Smj-the,    .         .  185 

Knowles  05.  Lord, 99,192,208,234 

Korse  v.  Waterhouse, 270 

Kunkleman,  Snyder  v 195 


,  TABLE   OP   CASES.  XXXVll 

LaComb,  Adams  v HS 

Ladd  V.  North, 94 

Lake  Shore  &  M.  Railwa}^  v.  Ellsey,         .         .         .         .       T7 

Lakin,  Ward  v.  .         .         .         •         .         .         .        .128 

Lamb  v.  Johnson,      .         .         .         .         .         .         •         .127 

Lainbden  v.  Conoway,       .......     270 

Lambert  v.  Hepworth, 174 

Lane,  Gardner  v 115 

Lane,  Mc Arthurs  v. 125 

Laville,  Ward  v 128 

Latimer,  W.B.v 102 

Lauck,  Henderson  v. 98,  100 

Lawrence  ex  parte, 261 

Lawrence,  Weaver  v 52,  68,  76,  78 

Lawson,  Johnson  v.  .......     244 

Lear  v.  Edmonds, 72,  195 

Lecky  v.  M'Dermott, 89,  136 

Lee,  Betts  v 100 

Lee  V.  Gould, 77 

Lee,  Jacobson  v.        . 81 

Lee,  Little  v 181 

Lee,  Penson  v. 246 

Lee,  Thompson  v 99 

Leeper,  Frey  v. 248 

Leete  v.  The  Gresham  Life  Ins.  Co.,         .         .         .         .191 

Lehman  v.  Kellerman, 106,  107 

Lehmer,  Whitney  v. 273 

Leigh  V.  Shepherd, 176 

Leominster  Canal  Co.  v.  Cowel, 244 

Leonard  v.  Stacey, 118 

Lisher  v.  Pierson,      .......        63,  304 

Lester  v.  McDowell, 77 

Lethbridge,  Concanen  v 287 

Lethbridge,  Yea  u 286 

Levy,  Shaw  v 96,  126 

Lewis,  Corbett  v 106 

Lewis  V.  Master, 86 

Lewis,  E.ex  v 297 


XXXVIU 


TABLE   OP   CASES. 


Lindon  v.  Collins, 
Lincoln,  Farley  v.     . 
Lingham  v.  Warren, 
Little  V.  Delancey,     . 
Little  V.  Lee, 
Livingston  v.  Bishop, 
Livingston,  Decker  v. 
Lloyd  V.  Brewster,    . 
Lockwood,  Bennett  v. 
Loekwood  v.  Perry,  . 
Lockwood,  Waterbury  v. 
Loeschman  v.  Machin, 
Long  V.  Buckeridge, 
Longueville,  Poole  v. 
Lord,  Knowles  v. 
Load  V.  Green, 
Lovett  V.  Burkbardt, 
Lovejoy,  Mann  v. 
Lovejoy  i».  Murray,  . 
Low  V.  Freeman, 
Low  V.  Martin, 
Lownsbury,  Gates  v. 
Lowry,  Frost  v. 
Lowry  v.  Hall, 
Lowther  v.  Lowther, 
Lucas,  Barnes  v. 
Luce,  Barkle  v. 
Luce,  Seaman  v. 
Ludlam,  Staniland  v. 
Ludlow,  Gowen  u.     . 
Lurasdem,  Metcalf  v. 
Lusby,  Hayes  v. 
Lynch  v.  Welsh, 
Lynn  v.  Wiseman, 
Lyons,  Simmons  v.    . 

Macclesfield  v.  Davis, 
Machin,  Loeschman  v. 


99,  19 


.  155 

.  89 
12,  180,  203 
.  202 
.  181 
.  235 
.  125 
.   97 

210,  213 
.  212 
.  84 
.  ■  88 
.  212 

173,  184 
2,  208,  234 
.   99 

122,  209 
.  195 
.  235 
.  101 
90,  101,  125 
.  84 
.   91 

122,  209 
.  241 

300,  302 
.  137 
.  217 

244,  245 
.  63 
.  88 
.  113 
.  206 

272,  287 
.  133 

.  241 

.   88 


TABLE   OF    CASES. 


XXXIX 


Mackey  v.  Dillinger, 
Mackinley  v.  M'Gregor, 
Malbon,  Ryder  v. 
Malott,  Mills  u. 
Maltravers  v.  Fosset, 
Mann  v.  Lovejoy, 
Manuel  v.  Reath, 
Manxel,  Basset  v. 
Marillier,  Fletcher  v. 
Marks,  Sanderson  v. 
Marlowe,  Wadham  v. 
Marriott  v.  Shaw, 
Marsh  v.  Pier,  . 
Marston  v.  Baldwin, 
Martin,  Baer  v. 
Martin  v.  Day,  . 
Martin,  Mills  v. 
Martin,  Low  v. 
Master,  Lewis  v. 
Mather  v.  Trinity  Church 
Matlock  V.  Fry, 
Matlock's  Adni.  v.  Strang 
Mattaine  v.  Burn, 
Matthews,  Morris  v. 
Maxham  v.  Day, 
Maybee,  Brizsee  v.    . 
Ma3^ser  v.  Gray, 
M'Arthurs  v.  Lane,  . 
M'Bride,  Hicks  v.     . 
M'Cabe  v.  Morehead, 
M'Claughrey  v.  Cratzenbu 
M'Clure,  Murgatroyd  v 
M'Conachy,  Kessler  v. 
M'Crea,  Roe  v. 
M'Dermott,  Lecky  v. 
M'Donald  v.  Scaife, 
M'Dowell,  Lester  v.  . 
M'Fall,  Smith  v. 


182 

85,  89,  98,  99, 139, 190, 191,  20G,  208 

.  193 
.  125 
.  142 
.  195 
.  183 
.  169 
.  173 
131,  133 
.  164 
.  93 
206,  209,  214,  236 
52,  81 
.  53 
.  147 
.  94 
90,  101,  125 
.  86 
.  105 
.  109 

hn, 217 

.  115 
.  270 
.  77 
.  287 
.  250 
.  125 
306,  307 
287,  308 

rg, ^^ 

.  212 

.  137 
.  254 
89,  136 
210,  308 
.  77 
.  272 


xl 


TABLE   OF    CASES. 


MTarland  v.  Barker, 
M'Farland,  Simpson  v. 
M'Gill  V.  Browning, 
M'Gowin  V.  Remington, 
M'Gregor,  Mackinley  v. 
M'Henry,  Huebschmann 
M'Henry,  Seibert  v. 
M'llvaine,  Waples  v. 
M'Intosh,  Harrison  v. 
M'Kee,  Dunkin  v. 
M'Kinne}',  Karus  v. 
M'Kinney  v.  Reader, 
M'Knight  v.  Morgan, 
M'Lees  v.  Felt, 
M'Malion  u.  Sloan, 
M'Neil  V.  Arnold, 
M'Vey,  Patterson  v 
Mead  v.  Kilday, 
Mead,  Robinson  v. 
Mead,  Woleott  v. 
Meany  v.  Head, 
Meeter,  Freedenburg  v. 
Mellan  v.  Baldwin, 
Melson,  Burrage  v. 
Mennie  v.  Blake, 
Merle,  Williams  v. 
Merrick's  Estate, 
Metcalf  V.  Lumsden 
Metzgar,  Hardy  v. 
Michael,  Bradley  v. 
Mikesill  v.  Chaney, 
Mildrnm  v.  Snow, 
Miller  v.  Davies, 
Miller  v.  Foutz, 
Miller,  Hill  v.     . 
Miller  v.  Munhall, 
Milliken  v.  Selge, 
Mills,  Auriol  v. 


85,89 


98 


99, 


139,190,1 


91 


139, 


T6 


184 


180, 


.  192 
.  219 
.  91 
.     241 

,206,208 
.     105 

,  123,  190 
.     285 

,  185,  18T 
.  IT 
.  204 
.  204 
.  123 
.  148 
99,  148,  192 
.  8T 
.       93 

.    n. 
.   in 

.  272 
.  81 
.  289 
.  137 
.  54 
76,  85 
97,  207 
241 


214 

77 

71 

76 

118 

307 

195 

98 

272 

164 


182,  194, 


TABLE   OF   CASES. 


Xli 


Mills  V.  Malott, 

Mills  V.  Martin, 

Minchrod  v.  Windoes, 

Mitchell,  Bond  v. 

Mitchell,  Bratton  v. 

Mitchell  V.  Burch, 

Mitchell,  Drake  v. 

Monges,  Phillips  v. 

Mood}',  James  v. 

Moor  V.  Watts, 

Moore  v.  Bowmaker, 

Moore  v.  Cliptam, 

Moore,  Rogers  v. 

Moore  v.  Shenk, 

Moore's  Appeals, 

Moorman  v.  Quick, 

Morehead,  M'Cabe  v. 

Morgan  v.  Griffith, 

Morgan,  M'Knight  v. 

Morgan,  Bees  v. 

Morris  v.  De  Witt, 

Morris,  De  Witt  v. 

Morris,  Jones  v. 

Morris  v.  Matthews, 

Morris  v.  Parker, 

Morris,  Reeves  u. 

Morris  v.  Robinson, 

Morris  v.  Van  Yoast, 

Morrison,  Swift  v. 

Moss,  Hirst  v.   . 

Moss,  Neave  v. 

Motley,  Irving  v. 

Mouille,  Hays  v. 

Mountne}'  v.  Andrews, 

Mounts tephon,  Hallett  v. 

Mowrey  u.  Walsh,     . 

Mt.  Carbon  R.  R.  Co.  v.  Andrews, 

Muck  V.  Folkrod, 


69,  11 


214,  21 


89, 


125 

94 

131 

133 

13T 

213 

234 

180,  204 

.     231 

6,  232,  25T 

278,  294 

115,  131 

.     235 

T,  220,  306 

.     296 

.       18 

287,  308 

.    277 

.     123 

227,  228 

122,  209 

.     115 

,  181,204 

.    270 

.     120 

.     125 

.     232 

.     272 

126, 148 

.     112 

.     183 

95,  99,  207 

.       92 

.     197 

.     284 

97,  207,208 

77 

129 


180 


xiii 


TABLE    OF    CASES. 


Munhall,  Miller  v.      . 
Murdock  V.  Will, 
Murgatroyd  v.  M'Cliire, 
Murray,  Lovejo}'  v.   . 
Musser  v.  Gardner,    . 
Musser  v.  Good, 
Myers  v.  Clark, 
Meyers  v.  Commonwealth, 

Naglee  v.  Ingersoll,  . 
Napier,  Hollingsworth  v. 
Nathans,  Gray  v. 
Nathans,  Hildeburn  v. 
Neale,  Johnson  v. 
Neave  v.  Moss, 
Nelson,  Kempster  v. 
Neville,  Clark  v. 
Neville  v.  Williams,  . 
Newell,  Oleson  v. 
Niblet  V.  Smith, 
Nichols  V.  Nichols,    . 
Nightingale  u.  Adams, 
Nixon,  Woods  v. 
Noble  V.  Adams, 
Noble  V.  Epperly, 
Nonemaker,  Coble  v. 
North,  Bell  v.    . 
North,  Ladd  v. 
North,  Potter  v. 
Northern  Liberties,  Fox 
Norton,  Tice  v. 
Norris,  Yaughn  v. 
Noyes,  Wills  v. 

Obrecht,  Hanford  v. 
O'Connor,  Tibbies  v. 
Ogden,  Bruen  v. 
Ogden  V.  Stock, 


269,  21 


297 


98 

287 

212 

235 

124 

245 

,  300, 

302 

• 

298 

185, 

186 

. 

97 

, 

192 

99, 

148 

. 

206 

. 

183 

. 

132 

. 

109 

1,  294 

306 

. 

53 

133 

179 

, 

134 

, 

101 

. 

76 

99 

207 

. 

210 

. 

207 

. 

84 

. 

94 

128 

,  168 

. 

237 

158 

,  193 

. 

280 

• 

125 

217 

. 

286 

. 

53 

, 

105 

TABLE   or    CASES. 


xliii 


O'Hanlin  v.  Byrcl, 
Oleson  V  Newell, 
Oliver,  Doe  v.    . 
Olwine,  Pott  v. 
O'Neal  u.  Wade, 
Ormond  v.  Brierly, 
Ormsbee  v.  Davis, 
Orser,  King  v.  . 
Osgood  V.  Green, 
Osterhout  v.  Roberts, 
Otterstatter,  Prescott  v. 
Owings,  Cromwell  v. 
Oxley  V.  Cowperthwaite, 

Page  V.  Chuck, 
Page  V.  Crosby, 
Page  V.  Earner, 
Page,  Shuter  u. 
Pagrave,  Cockley  v. 
Palmer,  Bonoyon  v.  . 
Palmer  v.  Hand, 
Palmer,  PuUen  u. 
Palmer,  Rapp  v. 
Pangburn  v.  Patridge, 
Parker,  Morris  v. 
Parkhurst,  Abercrorabie  v 
Parkhurst,  Ryley  v. 
Parker,  Brown  v. 
Parker  v.  Patrick, 
Partridge  v.  Swaby, 
Patrick,  Parker  v. 
Patrick,  State  v. 
Patridge,  Pangburn  v. 
Patterson  v.  M'Yey, 
Patterson,  Rous  u.    . 
Pattison  v.  Adams,   . 
Paul  V.  Goodluck, 
Pearce  v.  Humphreys, 


53 

53 
185 
126 
213 
283 

53 
121 

76 
235 
204 

52 
300 

193 

86 
284 
147 
128 
176 
207 
152 
90,  95 
80 
120 
142,  168,  192 
169 
278 
99 
77 
99 
150 
80 
93 
250 
129 
286 
76,  78,  298,300,  301,  305 


xliv 


TABLE   or   CASES. 


Pearsall  v.  Chapin, 
Pearson,  Dyev  v. 
Pease  v.  Smith, 
Peck,  Johnson  v. 
Peer  v.  Humphrey, 
Penrose  v.  Green, 
Penson  v.  Lee, 
People,  The,  v.  Albany, 
People,  The,  Artcr  v. 
Perreau  v.  Bevan, 
Perrett,  Axford  v. 
Perrott,  Hill  v. 
Perry  v.  Boileau, 
Perry,  Lockwood  v. 
Peter  u.  Duke,  . 
Peters,  Cross  v. 
Peterson  u,  Haight, 
Pettee,  Case  v. 
Phelps,  Campbell  v. 
Phenix  v.  Clark, 
Philbrick,  White  v. 
Phillips  u.  Harris, 
Phillips  u.  Hyde, 
Phillips  V.  Monges, 
Phillips  V.  Price, 
Phillips,  Pringle  v. 
Phillips,  Seal  v. 
Phillips  V.  Whitsel, 
Philpot  V.  Dobbinson, 
Phinney,  Badger  v. 
Phipps  V.  Boyd, 
Pickering,  Buck  v. 
Pickle,  Albright  v. 
Pier,  Marsh  v.   . 
Pierce  v.  Stephens, 
Pierson,  Lisher  v. 
Pike  V.  Gandall, 
Pilkington  v.  Hastings, 


79,2 


93,  2 


206,  209,  2 


. 

91 

. 

95 

. 

99 

91,  98 

88,  99 

,207 

. 

209 

. 

246 

. 

93 

. 

272 

95,  299 

,  300 

.  280 

,286 

88 

124 

212 

165 

97 

180 

270 

235 

113 

235 

.   95, 

214 

. 

192 

.   186, 

204 

.  284, 

292 

. 

98 

. 

283 

167, 

175 

. 

158 

5i 

},  81 

, 

159 

. 

192 

, 

180 

5,  236, 

237 

. 

77 

63, 

304 

• 

151 

^ 

205 

TABLE   OF   CASES. 


xlv 


Pilkiiigton  V.  Trigg, 
Pine,  Trevilian  v. 
Pitcher,  Rogers  v. 
Pitt  V.  Shew,     . 
Pitts  V.  Hale,    . 
Plummer,  Taylor  v. 
Poltz  V.  Curtis, 
Poole  V.  Longueville, 
Poor,  Bowles  v. 
Poor  V.  Woodbnrn, 
Pope  V.  Tillman, 
Porter,  Butcher  v. 
Porter  v.  Foster, 
Postman  v.  Harrel, 
Pott  V.  Olwine, 
Potten  V.  Bradley', 
Potter,  Baird  v. 
Potter,  Elliott  v. 
Powel,  Hazlett  v. 
Potter  V.  North, 
Powel  V.  Hinsdale, 
Powel  V.  Smith, 
Powell,  Browne  v. 
Powell,  Elliott  V. 
Prescott  V.  Otterstatter, 
Presgrave  u.  Saundei 
Price,  City  v.    . 
Price,  Phillips  v. 
Prideaux  v.  Warne, 
Pringle  v.  Phillips, 
Pullen  V.  Palmer, 
Purple,  Purple  u. 
Pusey  V.  Pusey, 

Quick,  Mooreman  v. 
Quick,  Snedeker  v. 
Quin  V.  Wallace, 
Quincy  v.  Hall, 
Quirk  V.  Wright, 


T3,  180 


. 

53 

205 

179, 

183 

• 

133 

. 

137 

. 

207 

. 

212 

ns, 

184 

. 

173 

221, 

247 

131 

139, 

280 

, 

89 

, 

173 

93, 

126 

. 

129 

152, 

307 

. 

235 

. 

180 

128. 

168 

221. 

247 

, 

105 

. 

205 

106, 

117 

181, 

204 

. 

139 

, 

285 

284, 

292 

, 

102 

. 

98 

. 

152 

. 

270 

• 

241 

. 

78 

Ill 

131 

,  196 

203 

. 

145 

^ 

286 

xlvi 


TABLE   OF    CASES. 


Ramsbottom,  Crowther  v 
Ramse3',  King  v. 
Rapp  V.  Palmer, 
Rappalo,  Stoughton  u. 
Ravenor,  Hudd  v. 
Read,  Fells  v.    . 
Read  v.  Hutchinson, 
Reader,  McKinney  v 
Reath,  Manuel  v. 
Rector  v.  Chevalier, 
Redford,  Hungerford  v 
Reece  v.  Hoyt, 
Reed,  Richardson  v. 
Rees,  Commonwealth  v 
Rees  V.  Morgan, 
Reeves  v.  Morris, 
Reigart,  Franciscus  v. 
Reinheinier  v.  Hemingway' 
Reist  V.  Heilbrenner, 
Remington,  M'Gowan  v. 
Rex  V.  Lewis,    . 
Reynell,  Delabastide  v. 
Reynolds,  Anderson  v. 
Reynolds  v.  Sallee,    . 
Reynolds,  Stimpson  u. 
Re3-nolds  v.  Thorpe, 
Richard,  Claggett  v. 
Richardson  v.  Reed, 
Riddle  v.  Welden,      . 
Rider  v.  Edwards, 
Riggs,  Bourk  v. 
Robbins,  Daggett  v. 
Roberts  v.  Dauphin  Bank 
Roberts,  Osterhout  v. 
Roberts  v.  Snell, 
Robins  v.  Kitchen,    . 
Robinson  v.  Dauch,   . 
Robinson  v.  Mead,    . 


155,  158 


12,  76 


. 

175 

. 

217 

90,  95 

7f 

5,  78 

180, 

195 

241 

207 

204 

183 

53 

106 

125 

126 

281, 

298 

227 

125 

160, 

271 

125, 

191 

187 

241 

297 

69 

258 

180 

92 

120 

153 

270 

126 

181 

270 

217 

53,  71 

76 

105 

. 

235 

. 

159 

182 

194 

, 

98 

. 

117 

TABLE   OF   CASES. 


xlvii 


Robinson,  Morris  v. 
Robinson,  Waterman  v 
I^ockey  v.  Burkhalter, 
Roe  V.  McCrea, 
Rogers  v.  Arnold, 
Rogers,  Jackson  v. 
Rogers  v.  Moore, 
Rogers  v.  Pitcher, 
Rogers,  Thompson  v 
Roland  v.  Gund}^, 
Rong  V.  Dawson, 
Root  V.  French, 
Root  V.  Woodruff, 
Rose,  Thompson  v. 
Roseberry,  Weidel  v 
Round,  Hunt  v. 
Rous  u.  Patterson, 
Rowcliffe,  Wood  v. 
Rowley  v.  Bigelow, 
Roj'al  Saxon,  Taylor 
Roys,  Swain  v. 
Rush  V.  Flickwire, 
Rushford,  Haylhorn  v. 
Russel,  Chinn  v. 
Russell  V.  Smitli, 
Russel,  Vausse  v. 
Ryder  v.  Malbon, 
R^'ley  V.  Parkhurst, 


Sager,  Blain  v.  . 
Sallee  v.  Reynolds, 
Saltzer  v.  Ginther, 
Sambach,  Holt  v. 
Sands  v.  Fritz, 
Sanders  v.  Darling, 
Sanderson  v.  Marks, 
Sangston,  Chaffee  v. 
Sappel  V.  Welsh, 


•76,  1 


. 

.  232 

. 

.  190 

. 

.  30T 

. 

.  254 

25,  139 

141,  146 

.  128 

. 

.  235 

. 

179,  183 

. 

.  235 

. 

90,  91 

. 

.   53 

. 

97,  207 

. 

.  131 

. 

.   89 

. 

.  252 

. 

.  289 

. 

.  250 

. 

.  241 

89,  98,  208 

.   102, 

209,  307 

. 

.   53 

.  204 

.   77 

53,  76 

.  210 

.  105 

.  193 

.  109 

.  100 

.   92 

.  271 

.  171 

283,  284 

.  302 

131,  133 

306,  307 

.   92 

xlviii 


TABLE    OF    CASES. 


Sapsford  v.  Fletcher, 
Sauerinan  v.  Weckerly, 
Saunders,  Presgrave  v. 

.     183,  353 

.     137 
.     139 

Saville,  Ward  v.         .         .         . 

.     128 

Saw3'er  v.  Baldwin,  . 

Sax,  Brown  v 

.     109 
.     100 

Sayce,  Browne  v.       .         .         . 
Sayward  v.  Warren, 
Scaife,  McDonald  v. 

158,  170,  193 

.       76 

.     210,  308 

Scarborough,  Branscomb  v. 

.      286,  288 

Schofield  V.  Ferrers, 

.     210,  220 

Schofield  V.  White  Legge, 
Scholey,  Gwyllim  v. 
Schulenburg  v.  Harriman, 

.     133 
.     302 
.     101 

Scott,  Baler  v 

.     2U 

Scott  V.  Waithman,  . 

.     299,  302 

Seal  V.  Phillips, 

.     283 

Seaman,  Covenhoven  v.     . 

.     259 

Seaman  v.  Luce, 
Seaver  v.  Dingley, 
Seibert  v.  M'Henry  . 

.     217 

.   52,  86,  87,  133 
76,  123,  190 

Selby  V.  Bardons, 

.     181 

Selbey  v.  Crutcliley, 
Selge,  Milliken  u. 

.     247 

.     272 

Semayne's  Case, 
Sergeant,  Ingersoll  v. 

.     113 

.     158 

Sewell,  Hepburn  v.    . 
Shannon  v.  Shannon, 

.     235 

.       81 

Sharp  V.  The  United  States, 

.     293 

Shaw,  Kendar  v. 

.       97 

Shaw  V.  Levy,  . 

.       96,  126 

Shaw,  Marriott  v. 

.       93 

Shaw  V.  Tobias, 

.      252,271,306 

Shearick  v.  Huber, 

.    76,  78,  91,  127 

Shenk,  Moore  v. 

.       2 

14,  2 

17,  220,  306,  307 

Shepherd,  Leigh  v. 
Shepherd  v.  Boyce, 
Sheppard  v.  Shoolbre 

ad,    . 

.    '     .        .176 
.     171 
.       99 

TABLE   OF   CASES.  xlix 

Sherburne,  Yickery  v 143 

Sherbrooke,  Cooper  v.       , 274 

Sherry  v.  Foresman,  . 294 

Sherwin,  Hargrave  v 193 

Shew,  Pitt  V 133 

Shipman  v.  Clark, 118 

Shoolbread,  Sheppard  v .99 

Short  V.  Hubbard      .....       155,  2G9,  271,  306 

Shuter  t;.  Page, 147 

Sibbs,  Bull  V 164 

Silliman,  Brewster  v.         ......         .     304 

Silly  V.  Dally, 184 

Simcoke  v.  Frederick,       ....       151,  187,  190,  206 

Simon,  Lyons  v .         .         .133 

Simpson  v.  Hartop, 181 

Simpson,  Kenney  v. 129 

Simpson  v.  M'Farland, 219 

Simpson  v.  Wrenn, 185 

Sims,  Brown  v. 181 

Singer  Manuf.  Co.,  The,  Hamilton  v 87 

Sir  R.  Bovey's  Case, 87 

Skidmore  v.  Devoy, 145 

Skinner,  Clark  v 122 

Skinner  v.  Fleet,        .         .         .         .         .         .         .         .258 

Slade,  England  v 182,  194 

Slie  u.  Finch, 197 

Sloan,  McMahon  v 99,  148,  192 

Slingsby's  Case, 169 

Smith  V.  Aurand, 221 

Smith  V.  Crockett, 54 

Smith,  Gargrave  v 87 

Smith,  Harris  v 77,  98,  125 

Smith  V.  Huntington,         .         .         .         .         .         .     •    .       93 

Smith  V.  M'Fall,        ........     272 

Smith,  Niblet  v 133,  179 

Smith,  Pease  v. 99 

Smith,  Powel  v •      .         .         .         .105 

Smith,  Russell  v 210 

D 


1 


TABLE   OF    CASES. 


Smith  V.  Smith, 

Smith,  Walpole  v. 

Smith  V.  Walton, 

Smith,  Williams  v. 

Smith  V.  Williamson, 

Smith,  Wingate  v. 

Smjthe,  Knight  v. 

Snecleker  v.  Quick, 

Snelgar  v.  Henston, 

Snell,  Roberts  v. 

Snow,  Mild  rum  v. 

Sn^'der  v.  Kunkleman 

Snyder  v.  Yaux, 

Souter,  Baymore  v. 

South  by,  Eaton  v. 

Southern  Plank  Road  v.  Hixon 

Spearman,  Cully  v. 

Spencer  v.  Darlington 

Spencer  v.  Robert, 

Sprenkle,  Zeigler  v. 

Stacey,  Leonaixl  v. 

Staniforth  v.  Fox, 

Staniland  v.  Ludlam 

State  V.  Jennings, 

State  V.  Patrick, 

Stead,  Hamerton  •u. 

Steanka,  Jenkins  v. 

Stedman,  Bates  v. 

Steinberger,  Hanna  • 

Stephens,  Pierce  v. 

Sterrett,  Brewster's  Admr.  v. 

Stevens,  Carpenter  v 

Stewart,  Wilkinson  v 

Stiles  V.  Griffith, 

Stimpson  v.  Reynold 

Stock,  Ogden  v. 

Stocking,  Hill  v. 

Stockwell  V.  Byrne, 


52 


.   99 

.  IS 
.     158 
180,  227 
52,  76,  126 
.  100 
.  185 
111,  131 
.  172 
.  159 
.   76 
.  195 
76,  78,  100,  105,  106 
.  209 
.  105 
.  109 
.  177 
.  105 
.   77 
.  293 
.  118 
.  195 
244,  245 
52,  121 
150 
195 
210 
176 
95 
77 
296 
295 
101 
93 
120 
105 
173 
296 


TABLE   OP    CASES.  H 

Stone  V.  Forsyth, 246 

Stoughton  V.  Rappalo, T6   78 

Stout,  Cresson  v.       .        .         .        .        .         .         .         .105 

Stradling,  Syllivan  v 182,  184,  194 

Straughn,  Matlock's  Adm.  v 217 

Strew,  Hunt  v -77 

Striker,  Hooker  v 305 

Stubbs,  Bank  v. 125 

Stubbs,  Ilsey  v.         .......       81   127 

Sutton  V.  Wayte, 299 

Swaby,  Partridge  v.  . "77 

Swain  v.  Roys,  ••......       53 

Sweetzer,  Thompson  v I49 

Swift  V.  Morrison, .     126   148 

Syllivan  v,  Stradling, 182,  184,  194 

Tallcott,  Anderson  v 141 

Tallman,  Pope  v 131 

Tallman  v.  Turk, 98 

Tatham,  Underwood  v 87 

Taylor,  Adams  Express  Co.  v.  .        .         .         .       69,  269 

Taylor  v.  Plumraer, .     207,  307 

Taylor  v.  The  Royal  Saxon, 102,  209 

Taylor,  Trotter  v I43 

Taylor  v.  Wells, 131 

Taylor  v.  Zamira, 183,  186 

Tesseyman  v.  Gildart, 297 

Thayer,  Clappin  v 272 

Thayer,  Frisby  v 173 

Thayer  t).  Turner, 9I 

The  People  v.  Albany, 93 

The  People  v.  Arter, 272 

Thomas,  Furguson  v 77 

Thomas,  Williams  v. 189 

Thompson  v.  Button, 94 

Thompson,  Commonwealth  v 299 

Thompson  v.  Cross, 137 

Thompson  u.  Eagleton, .     214 


lii  TABLE    OF   CASES. 

Thompson  v.  Lee, 99 

Thompson  v.  Rogers, 235 

Thompson  v.  Rose, 89 

Thompson  v.  Sweetzer, I49 

Thornton  v.  Adams, I73 

Thorpe,  Reynolds  v. I53 

Thurston  v.  Blanchard, 9I 

Tibbal  v.  Cahoon, 245,  283,  285 

Tibbies  v.  O'Connor, 286 

Tice  V.  Norton,  .         .         .         .         .         .         .     158,193 

Tillman,  Bower  V 68,76,78,112,209 

Tobias,  Shaw  V 252,270,271,306 

Towne  v.  Collins, 91 

Train,  Wheeler  v *i>j 

Trapnall  v.  H utter, ^6 

Treverton  v.  Hicks, 165 

Trevilian  v.  Pine, 205 

Trevill,  Arundell  v 81    123   147 

Tricker,  Black  v 124 

Trigg,  Pilkinton  v 53 

Trinity  Church,  Mather  v 105 

Trott  V.  Warner, g^ 

Trotter  v.  Taylor, I43 

Tucker,  Badlam  v 280 

TurnbuU,  Gingell  v 288,  290,  306 

Turner  v.  Gallillee, 243 

Turner,  Thayer  v 9q 

Turner,  Turnor  v 272,  278,  295 

Twells  V.  Colville, 29T 

ITnderhill,  Webber's  Executors  v 13Y 

Underwood  v.  Tatham, 87 

Underwood  v.  White, 217 

United  States,  Sharp  v 293 

Vaiden  v.  Bell, 53 

Yanarsdall,  Ewing  v.         .         .        ,        .        .         .     170   193 
Yanbuskirk  v.  Burr, .173 


TABLE   OF    OASES. 


liii 


Yan  Namee,  Bradley  v. 
Yan  Yoast,  Morris  v. 
Yasper  v.  Edwards,  . 
Yaughan  v.  Norris,   . 
Yausse  u.  Russel, 
Yaux,  Snyder  v. 
Yickery  v.  Sherburne, 
Yogel,  Ex  parte. 

Wade,  O'Neal  v. 
Wadham  v.  Marlow, 
"Waithman,  Scott  v.  . 
Walker,  Heacock  v. 
Wallace,  Quin  v. 
Walpole  V.  Smith, 
Walsh,  Mowre}'  v.     . 
Walter  u.  Gin  rich, 
Walter,  Green  v. 
Waltman  v.  Allison, 
Walton  V.  Kersop,     . 
Walton,  Smith  v. 
Waples,  Coit  v. 
Waples  V.  Mcllvaine, 
Ward  V.  Henley, 
Ward  V.  Lakin, 
Ward  V.  Laville, 
Wardle,  Harrison  v. 
Warne,  Prideaux  v.   . 
Warner  v.  Aughenbaugh, 
Warner  v.  Caulk, 
Warner  v.  Gush  man, 
Warner,  Gould  v. 
Warner,  Trott  v. 
Warren,  Barrett  v.     . 
Warren  v.  Forney,    . 
Warren,  Lingham  v. 
Warren,  Sayward  v. 
Waterbury  v.  Lockwood, 


.   78,  143 

.  272 

.   75,199 

.  280 

.  105 

52 

76,  78,  100,  105,  106 
.  143 
.   92 

.  213 

.  164 

.  299,302 

.   91 

73,  180,  196,  203 
.  78 
89,  97,  207,  208 
.  296 
.  271 
.  159 

.  129,  142,  192 
.  158 
.  53 
.  285 
.  289 
.  128 
.  128 
.  280,  286 
.  102 

.   131,  132,  133 

.  180,181 

.  101 

.  272,  288,  289 
.  91 
80,  86 
.  195 
72,  180,  203 
.  76 
-   84 

liv 


TABLE   OF    CASES, 


Waterhouse,  Kerse  v. 
"Waterman  v.  Robinson, 
Waterman  v.  Yea, 
Watson  V.  Watson,   . 
Watts,  Moore  v. 
Watton  V.  Browne,    . 
Wajte,  Sutton  v. 
W.  B.  V.  Latimer, 
Weaver,  Hosack  v.    . 
Weaver  v.  Lawrence, 
Webber's  Executors  v.  Tnclerh 
Webster,  Horsford  v. 
Weckerlej',  Sauerman  v. 
Weed  V.  Hill,     .      '  . 

Weidel  v.  Roseberry, 

Weiler  v.  Coleman,    . 

Welch,  Williams  v.    . 

Welsh,  Lj-nch  v. 

Welsh,  Sappel  v. 

Welden,  Riddle  v. 

Wells,  Taylor  v. 

Wells,  Whetwell  v.    . 

Westinberger  v.  Wheatou 

Wetherill,  Acker  v.    . 

Wheeler  v.  Branscomb, 

Wheeler,  Curtis  i'.     . 

Wheeler  v.  Train, 

Wharton  v.  Blacknell, 

Wheelock  v.  Cozzens, 

Wheelwright  v.  Depeyster 

Whetstone,  Banks  v. 

Whetwell  v.  Wells,    . 

White  V.  Brown, 

White  V.  Garden, 

White,  Hall  v.  . 

White  Legge,  Schofleld  v 

White  V.  Philbrick,    . 

White,  Underwood  v. 


11, 


.  270 
.  190 

.  280 
.   53 
69,  116,  232,  25T 
.  232 
.  299 
.  102 
91,214 
52,  68,  76,  78 
.  137 
.  181 
.  137 
.  148 
.  252 
.  206 
.  116 
.  206 
.   92 
.  181 
.  131 
76,  143,  147,219 
.   94 
173, 179 
.  179 
.  189 
.   77 
.  291 
.   54 
91,  97 
.  100 
76,  143,  147,  219 
.   87 
.   99 
.  126 
.  133 
.  235 
.  217 


TABLE   OF    CASES. 


Iv 


Whiteman  v.  Jones,  . 
"Whitesides  v.  Collier, 
Whitney  v.  Lehmer, 
Whitsed,  Phillips  v. 
Whoolleiy,  Fisher  v. 
Wilkinson  v.  Stewart, 
Will,  Murdock  v. 
Willard  v.  Kimball, 
Willet,  Brooke  v. 
Williams  v.  Given,     . 
Williams  v.  Merle,     . 
Williams,  Neville  v.  . 
Williams  v.  Smith,     . 
Williams  v.  Thomas, 
Williams  v.  Welch,    . 
Williams,  Wright  v. 
Williamson,  Smith  v. 
Wills  V.  Noyes, 
Wilsmore,  Earl  of  Bristol 
Wilson,  Boot  u. 
Wilson,  Brisben  v.     . 
Wilson  V.  Graj-, 
Wilson,  Kilby  u. 
Windoes,  Minehrod  v. 
Wingate  v.  Smith,     . 
Winnard  u.  Foster,    . 
Wiseman  v.  L3'nn,     . 
Withers,  Clerk  v. 
Woglan  V.  Cowperthwaite 
Wolcott  V.  Mead, 
Wolj'^er,  Johnson  v.  . 
Wood,  Beaumont  v.  . 
Wood  &  Foster's  Case, 
Wood,  Holmes  u. 
Wood  V.  Roweliffe,    . 
Woodburn  v.  Chamberlin, 
Woodburn,  Poor  v.    . 
Woodruff,  Root  v. 


.       97, 
269,  271,  294, 
180,  227, 


51,  153,  174, 
52,  76, 


125,  131,  139,  14 


.   167, 
214,  241, 


1,  145, 


221, 
272, 


116, 


2^1 


269 
125 
273 
174 
307 
101 
287 

92 
246 

98 
207 
306 
228 
189 
116 
178 
125 
125 
207 
164 
121 
146 

88 
131 
100 
247 
287 
197 
248 
2T2 
192 
164 
172 
143 
241 
213 
247 
131 


Ivi  TABLE    or    CASES. 

Woods  V.  Nixon, 76 

Worthington,  Easton  t'.     .         .         .         91,211,214,216,217 

Wrenn,  Simpson  v.   .......        .     185 

Wright  V.  Armstrong,       .......       53 

Wright,  Bailey  v 195 

Wright  V.  Bennett, 125 

Wright,  Bristow  v 164 

Wright,  Clement  v 106 

Wright,  Coursey  u 94 

Wright  V.  Deacon,     .         .         .         .         .         .         .         .261 

Wright,  Hellings  u 109,  151 

Wright  V.  Quirk, 286 

Wright  V.  Williams, 151,  174,  178 

Wyckoff,  Dunham  v 94 

Wyman,  Fitzhugh  v. 217 

Wynne  v.  Wjmne, 177 

Yea  V.  Lethbridge, 286 

Yea,  Waterman  v 280 

Young  0.  Herdic 106,211 

Young  V.  Kimball, 76 

Zachrisson  v.  Ahman, 80,  86 

Zamii-a,  Taylor  v 183,  186 

Zeigler  v.  Sprenkle, 293 


THE 


LAW  OF  REPLEYIN. 


CHAPTER    I, 

REPLEVIN,    ITS    ORIGIN    AND    HISTORY. 

■  Replevin,  as  defined  by  Chief  Baron  Gilbert, 
is  the  remedy  given  the  p^irty  to  controvert  the 
legality  of  a  distress,  in  order  to  bring  back  the 
pledge  to  the  proprietor,  in  case  the  distress  were 
unlawfnlly  taken  and  without  just  cause.  Black- 
stone  says,  to  replevy  (replegiare,  to  take  back 
the  pledge),  is  where  a  person  distrained  upon, 
applies  to  the  sheriff*  or  his  officers,  and  has  the 
distress  returned  into  his  possession,  upon  giving 
good  security  to  try  the  right  of  taking  it  in  a  suit 
at  law,  and,  if  that  be  determined  against  him,  to 
return  the  cattle  or  goods  once  more  into  the  hands 
of  the  distrainor.  The  definition  of  Spelman  is 
more  comprehensive  and  more  accurate  than  eithei". 
He  says  :  A  replevin  is  a  justicial  wTit  to  the  sheriff', 
complaining  of  an  unjust  taking  and  detention  of 
goods  or  chattels;  commanding  the  sheriff"  to  de- 
5 


52  REPLEVIN,    ITS    ORIGIN 

liver  back  the  same  to  the  owner  upon  security 
given  to  make  out  the  injustice  of  such  taking,  or 
else  to  return  the  goods  and  chattels. 

Neither  of  these  definitions  is  broad  enough  for 
I'eplevin  in  Pennsylvania,  which  may  be  defined  to 
be,  the  remedy  for  the  unlawful  detention  of  per- 
sonal property,  by  which  the  property  is  delivered 
to  the  claimant  upon  giving  security  to  the  sheriff 
to  make  out  the  injustice  of  the  detention,  or  return 
the  property.^ 

This  definition  will  apply  to  the  action  of 
replevin  in  the  following  named  States ;  viz. : 
Maine,^  ^ew  Hampshire,^  Vermont,^  Massachu- 
setts,^    JS'ew    York,^     Ohio,^     Maryland,^     Dela- 

*  Weaver  v.  Lawrence,  1  Dall.  157.  Snyder  u.  Vaux,  2  R. 
428. 

■■'  Revised  Statutes  of  Maine,  587,  A.  D.  1857.  Seaver  v. 
Dingley,  4  Greenl.  315. 

^  Brown  v.  Fitz,  13  New  Hamp.  283. 

*  Stat,  of  Vt.,  tit.  RepleA'in. 

^  Badger  v.  Pbinney,  15  Mass.  359.  Baker  v.  Fales,  16  Mass. 
147.    Marsten  W.Baldwin,  17  Mass.  606.    See  App.  Stat,  of  Mass. 

*  See  Appendix,  New  York  Code.  Bliss ;  New  York  Anno- 
tated Code,  1035. 

'  Revised  Stats,  of  Ohio,  p.  997,  Ed.  1860.  State  v.  Jen- 
nings, 14  Ohio  State  R.  73. 

*  Cullutn  V.  Bevans,  6  Har.  &  J.  469.  Smith  v.  Williamson, 
1  Har.  &  J.  147.     Cromwell  v.  0 wings,  7  H.  &  J.  53. 


AND    HISTORY.  53 

ware,'  Kentucky,^  Missouri,'^  "Wisconsin/  Arkan- 
sas,'^ Tennessee,*'  Michigan,^  Indiana,*  Minnesota,^ 
-Rhode  Island, ^'^  and  N^eljraska. 

In  'New  Jersey,^^  Illinois,^^  Georgia,  and   South 
Carolina,^^  the  taking  must  be  unlawful. 

In  Yirginia,"  Georgia,^''  Connecticut,^*'  and  Ala- 

^  Clark  V.  Adair,  3  Harrington,  115.     See  contra  Johnson  v. 
Johnson,  4  Harrington,  171,  and  Drummond  u.  Hopper,  4  Har- 
rington, 327.     Revised  Code  1852,  p.  379. 
'  Ky.  Stat.  p.  503,  Act  of  1842. 

^  Revised  Stat,  of  Missouri,  p.  921,  1845.  See  Rector  v. 
Chevalier,  1  Mis.  345.     Pilkington  v.  Trigg,  28  Mis.  95. 

*  Stat,  of  Wisconsin,  p.  271.  Swain  v.  Roys,  4  Wis.  150. 
Rong.  V.  Dawson,  9  Wis.  246. 

^  Revised  Stat,  of  Ark.  p.  658.  Cox  v.  Grace,  5  Eng.  86. 
«  Act  15  Jan.  1846,  Tenn.  Rev.  Stat.,  Part  3,  Tit.  4,  ch.  5. 
"  Michigan  Stat.,  tit.  Replevin. 

**  Daggett  V.  Robbins,  2  Blackf.  415.  Chinn  v.  Russell,  lb. 
172.  Baer  v.  Martin,  2  Ind.  229.  Gavin  and  Hord's  Stats.  Vol. 
II.  p.  127,  Ed.  1862. 

>•  Coit  V.  Waples,  1  Min.  134,  141.    Oleson  v.  Newell,  12  Min. 
186;  Stat.  Min.  p.  512. 
'»  Revised  Statutes  Rhode  Island,  p.  519,  Ed.  1857. 
"  Brueu  v.  Ogden,  6  Halst.  370. 
'■^  Wright  V.  Armstrong,  Breese,  130. 
'•''  Byrd  v.  O'Hanlin,  1  Rep.  Con.  Ct.  401. 
'*  Yaiden  1'.  Bell,  3  Rand.  488. 
'^  Hewson  v.  Hunt,  8  Rich.  106. 

'^  Watson  V.  Watson,  9  Conn.  140;  but  see  Ormsbee  v.  Davis, 
16  Conn.  568,  aud  18  lb.  555.  Revision  Swift's  Digest,  Vol.  I. 
p.  532. 


54  KEPLEVIN,    ITS    ORIGIlSr 

bama,^  this  remedy  is  confined  to  distresses  and 
attachments. 

In  Mississippi,  by  the  revised  code  of  1871,  the 
action  of  replevin  extends  to  any  wrongful  taking 
or  wrongful  detention  of  personal  property;  and 
the  spirit  of  the  statutes  intends  that  the  remedy 
shall  be  complete  in  providing  for  the  recovery  of 
the  property,  and  compensation  for  the  injury.^ 
Prior  to  the  code  it  had  been  held  to  lie  only  for  a 
distress  for  rent.^ 

The  action  of  replevin  is  among  the  oldest  known 
to  the  law.  Glanvil  speaks  of  it  as  well  known  in 
his  time,  and  gives  the  form  of  the  writ.*  Bracton, 
Fleta,  and  Fitzherbert,  treat  of  it  at  length. 
Bracton  says :  "  The  detention  of  a  ]Sramium  (i.  e., 
the  thing  distrained)  was  a  subject  belonging  to 
the  jurisdiction  of  the  king's  croAvn,  and  cognizance 
thereof  was  rarely  allowed  to  any  except  the  king 
or  his  justices ;  but  because  qnestions  of  distress 
require  despatch,  on  account  of  the  nature  of  the 

'  Smith  V.  Crockett,  1  Ala.  277. 

''  Burrage  v.  Melson,  48  Miss.  237.  Revised  Code  of  1871, 
ch.  16. 

'  Wheelock  v.  Cozzens,  6  How.  Miss.  279.  Sharke}',  C.  J., 
dissented. 

*  Beame's  Glanv.  294. 


AND    HISTORY.  55 

subject  taken,  which  was  somethnes  living  animals, 
a  special  jurisdiction  used  to  be  given  to  the 
sheriff,  who  in  this  instance  did  not  act  in  his  office 
as  sheriff,  but  as  justiciarius  regis. "^ 


This  special  jurisdiction  was  conferred  upon 
the  sheriff  by  a  justicial  writ  out  of  Chancery,^ 
giving  the  sheriff  authority  to  replevy  and  deliver 
the  goods,  and  to  determine  the  point  complained 
of  in  the  county.  The  writ  as  to  that  matter  run- 
ning, "and  after  cause  him  (the  defendant)  to  be 
brought  to  justice  for  the  same,  that  we  hear  no 
more  complaints  for  want  of  justice."^ 


This  writ,  unlike  other  original  writs,  did  not 
contain  a  summons  to  the  defendant  to  appear  in 
any  of  the  king's  superior  courts  at  AYestminster, 
but  left  the  matter  to  be  determined  in  the  county 
court.  This  proceeding  by  original  was  soon  found 
too  tedious  for  the  distant  parts  of  the  kingdom, 
the  office  at  Westminster  being  the  only  one  for 
the  issue  of  writs  in  all  England. 

To  remedy  this  inconvenience,  the  21st  chapter 
of  the  statute  of  Marlbridge,  52  Henry  3d,  was 

^  Bracton,  155,  156.     2  Reeve's  Hist.  47. 

'  2  Inst.  139.     Hallet  v.  Bjrt,  5  Mod.  253.     Gilb.  Repl.  63. 

'  Reg.  Brev.,  Ed.  1687,  p.  81. 


56  REPLEVTIf,    ITS    ORIGIN^ 

passed,  by  which  it  was  provided,  "That  if  the 
beasts  of  any  man  be  taken  and  unlawfully  with- 
holden,  the  sheriff,  after  complaint  made  to  him 
thereof,  may  deliver  them  without  let  or  gainsay- 
inof  of  him  Avho  took  the  beasts,  if  thev  were  taken 
out  of  liberties,  and  if  the  beasts  were  taken  within 
any  liberties,  and  the  bailiffs  of  the  liberty  will  not 
deliver  them,  then  the  sheriff,  for  default  of  those 
bailiffs,  shall  cause  them  to  be  delivered,"^  This 
was  called  proceeding  by  plaint. 

Besides  the  inconvenience  as  to  time,  which  was 
felt  by  the  plaintiff  in  the  proceedings  by  writ, 
they  w^ere  liable  to  a  serious  objection  by  the  de- 
fendant, on  the  ground  of  security.  The  writ  of 
replevin  took  the  beasts  from  the  possession  of 
the  defendant,  and  as  the  plaintiff  was  obliged  to 
give  no  other  security  than  the  plegii  de  prose- 
quendo  to  answer  the  amercement  to  the  king,^ro 
falso  clamor e,  as  in  other  actions,  and  even  these 
having  at  an  early  day  degenerated  into  the  formal 
John  Doe  and  Richard  lioe,  it  might  well  happen 
that  the  plaintiff  had  sold  the  beasts  delivered  to 
him  on  the  replevin,  and  become  insolvent,  by  which 
the  avowant  would  have  no  benefit  from  his  suit. 
To  remedy  this,  the  statute,  Westminster  2d,  Ch. 

^  Statutes  at  larafe. 


AND    HISTORY.  57 

2,  13  Edw.  1,  A.  D.  1285,  provided,  "That  from 
thenceforth,  sheriffs  or  bailiffs  should  not  only  re- 
ceive from  the  plaintiffs  pledges  for  the  pursuing 
of  the  suit,  before  they  made  deliverance  of  the 
distress,  but  also  for  the  return  of  the  beasts,  if 
return  should  be  awarded."  This  act  also  reme- 
died the  evil  of  replevins  in  infinitum,  which  it 
was  held  the  plaintiff  might  have  by  suffering  a 
non-suit,  when  his  case  was  reached  for  trial.  The 
words  of  the  act  being,  "  And  forasmuch  as  it  hap- 
peneth  sometimes,  that  after  the  return  of  the  beasts 
is  awarded  unto  the  distrainor,  and  the  party  so  dis- 
trained, after  that  the  beasts  be  returned,  doth  re- 
plevy them  again,  and  when  he  seeth  the  distrainor 
appearing  in  the  court  ready  to  answ^er  him,  doth 
make  default,  whereby  return  of  the  beasts  ought 
to  be  awarded  again  unto  the  distrainor,  and  so 
the  beasts  be  replevied  twice  or  thrice,  and  infi- 
nitely, and  the  judgments  given  in  the  king's  court 
take  no  effect  in  this  case,  whereupon  no  remedy 
hath  been  yet  provided.  In  this  case,  such  process 
shall  be  awarded,  that  so  soon  as  return  of  the 
beasts  shall  be  awarded  to  the  distrainor,  the  sheriff 
shall  be  commanded  by  a  judicial  writ,  to  make 
return  of  the  beasts  unto  the  distrainor ;  in  which 
writ  it  shall  be  expressed  that  the  sheriff  shall  not 
deliver  them  without  writ,  making  mention  of  the 
judgment  given  by  the  justices,  which  cannot  be 


58  REPLEVIN,    ITS    ORIGIN- 

without  a  writ  issuing  out  of  the  rolls  of  the  said 
justices,  before  whom  the  matter  was  moved. 
Therefore  when  he  cometh  unto  the  justices,  and 
desireth  replevin  of  the  beasts,  he  shall  have  a 
judicial  wiit,  that  the  sheriff  taking  surety  for  the 
suit,  and  also  of  the  beasts  or  cattle  to  be  returned, 
or  the  price  of  them  (if  return  be  awarded),  shall 
deliver  unto  him  the  beasts  or  cattle  before  re- 
turned, and  the  distrainor  shall  be  attached  to  come 
at  a  certain  day  before  the  justices,  afore  whom 
the  plea  was  moved  in  the  presence  of  the  parties. 
And  if  he  that  replevied  make  default  again,  or 
for  another  cause  return  of  the  distress  be  awarded, 
being  now  twice  replevied,  the  distress  shall  re- 
main irreprievable.  But  if  a  distress  be  taken  of 
new,  and  for  a  new  cause,  the  process  abovesaid 
shall  be  observed  in  the  same  new  distress." 

This  writ,  reciting  the  former  judgment,  was 
called  the  writ  of  second  deliverance  ;^  and  though 
the  avowant,  having  judgment  in  the  second  deliver- 
ance, was  entitled  to  a  return  irreplevisable  of  the 
beasts — yet  this  right  was  subject  to  redemption 
of  the  beasts  by  the  tenant  on  payment  of  the  rent, 
as  they  were  still  in  the  nature  of  a  gage  or  pledge. 
Whether  the  replevin  was  by  plaint  or  writ,  the 

'  Gilb.  Repl.  67. 


AND    HISTORY.  59 

sheriff,  before  he  granted  the  one  or  executed  the 
other,  was  required  to  take  from  the  plaintiff  pledges 
de  prosequendo,  and  pledges  de  retorno  habendo.^ 
If  the  pledges  introduced  by  Westminster  2,  Ch. 
2,  for  the  security  of  the  avowant,  in  case  he  should 
have  judgment  for  a  return  of  the  beasts,  were  in- 
sufficient, the  avowant  had  his  remedy  against  the 
sheriff,  who  was  made  answ^erable  by  that  statute 
for  their  sufficiency.^  If  the  replevin  was  by  writ, 
and  the  sheriff  executed  it,  he  might  hold  plea 
of  it  in  his  county  court,  but  either  party  might 
remove  it  by  pone  ovrecordari  into  the  courts  above ; 
the  plaintiff  without  cause,  and  the  defendant  upon 
cause  shown. 

If  the  first  writ  was  not  executed,  the  plaintiff 
might  have  an  alias,  and  after  that  a  pluries  reple- 
vin ;  in  the  pluries  was  always  inserted  the  clause, 
"  or  certify  your  reason  to  us,  why  you  would  or 
could  not  execute  our  commands  heretofore  to  you 
hereupon  directed."  The  same  clause,  at  the  option 
of  the  plaintiff,  might  be  inserted  in  the  alias,  and 
then  it,  as  well  as  the  pleuries,  was  returnable  in 
the  king's  bench  or  common  pleas.  The  pleuries 
always,  and  the  alias  whenever  it  had  the  clause, 

1  Gilb.  Repl.  6t.     Wilk.  Repl.  10.     Dalt.  Sher.  2n,  439. 
*  Gilb.  Repl.  67. 


60  REPLEVIN,    ITS    0RIGI:N- 

vel  causarti  nobis  certijices,  in  it,  determined  the 
power  of  the  sheriff  to  hold  plea  of  the  replevin  in 
the  county;  and  the  reason  is  said  to  be,  that  these 
proceedings  compel  the  sheriff  to  return  the  writ, 
and  having  parted  with  it,  he  has  no  authority  to 
proceed  further  in  the  court  below.^ 

Before  the  proceedings  by  writ  went  into  disuse, 
it  was  usual  for  the  plaintiff  to  take  out  the  reple- 
vin alias  and  pluries  at  the  same  time,  and  he 
might,  if  he  chose,  deliver  the  alias  or  pluries  im- 
mediately to  the  sheriff,  and  thus  take  the  cause 
entirely  from  his  jurisdiction.^  On  the  return  to 
the  pluries  that  the  cattle  were  eloigned,  the 
plaintiff  was  entitled  to  a  precept  in  the  nature  of 
a  writ  of  withernam,  to  take  other  goods  in  lieu  of 
those  formerly  taken  and  eloigned  or  withheld  from 
the  owner;  or  the  plaintiff  might  proceed  in  the 
cause,  and  recover  damages  to  the  full  amount  of 
the  goods,  as  well  as  for  their  detention.^ 

Replevin  by  writ,  we  are  told  by  a  late  writer,  is 
now  quite  obsolete  in  England,  there  being  no 
instance  of  it  siilce  1743.  The  practice  has  been 
changed  by  the  19  and  20  Yict.  C.  108,  §§  63,  64, 

'  Gilb.  Repl.  73.  '  Gilb.  Repl.  75.     F.  N.  B.  68.  E. 

3  Wilk.  Repl.  20. 


AND    HISTORY.  61 

65,  66,  and  67.^  It  is  still  in  use  in  Ireland.^  Ke- 
plevin  by  plaint,  the  only  kind  used  in  England 
prior  to  the  act  of  1850,  was  created  by  the  statute 
of  Marlbridge,  52  Hen.  3d,  Ch.  21.  By  force  of 
this  statute,  the  sheriff  may  hold  plea  in  replevin 
of  any  value,  and  of  all  goods  and  chattels,  not- 
withstanding the  word  "averia"  is  only  used  in  the 
statute.  The  pledges  pro  retorno  habendo  under 
this  statute  may  be  by  the  bond  of  the  plaintifi'  in 
replevin,  himself  and  sureties,  or  sureties  only,^  in  a 
sum  proportional  to  the  value  of  the  goods,  with 
a  condition  that  the  plaintiff  shall  prosecute  the 
suit  in  replevin,  and  make  return  of  the  beasts,  if 
return  thereof  be  adjudged  by  law.^  The  sheriff, 
after  taking  the  replevin  bond,  issues  his  precept  to 
his  bailiff  to  replevy  the  goods  taken.^  If  the  de- 
fendant claims  property  in  the  goods  the  sheriff's 
power  is  at  an  end,  whether  he  be  proceeding  by  w^'it 
or  by  plaint.  If  the  proceedings  are  by  plaint,  the 
plaintiff  must  purchase  a  writ  de  proprietate  pro- 
banda, as  no  controversy  of  property  can  be  deter- 
mined in  the  county  court  without  the  king's  writ. 

'  C.  L.  Proc.act  23  &  24  Vict.  1860,  §  22.    See  Appendix  III. 
2  Wilk.  on  Repl.  1.     See  Anderson  v.  Hapler,  34  111.  436. 
^  1    Lord    Ray.    279,   and    Bohun    Inst.   Leg.   442.      Wilk. 
Repl.  11. 

*  Evans  v.  Brander,  2  H.  Black.  550.  '  Wilk.  Repl.  16. 


62  REPLEVIN,    ITS    ORIGIN 

On  this  writ  an  inquest  of  office  is  holden,  and 
if  on  such  inquest  the  property  be  found  for  the 
pUiintifl*  the  sheriff  is  to  make  deUverance  ;  but  the 
defendant  may  remove  it  by  recordari  facias  loque- 
1am,  and  put  in  his  plea  of  property  in  the  court 
above,  and  it  shall  be  determined  by  a  verdict.  If 
the  inquest  of  office  find  for  the  defendant,  there 
is  an  end  of  the  replevin  by  plaint,  for  the  property 
is  found  for  the  defendant,  and  so  no  deliverance 
can  be  made  by  the  sheriff":  the  plaintiff  may,  how- 
ever, bring  a  new  replevin  by  wi'it;  for  what  is  done 
on  the  plaint  is  no  bar,  nor  has  it  any  concern  with 
the  proceedings  upon  the  writ.^ 

If  the  replevin  were  by  original  writ,  and  the 
defendant  claimed  property,  the  sheriff  could  not 
make  deliverance  any  more  than  he  could  upon 
the  plaint ;  but  it  was  his  duty  to  return  the  claim 
of  property  on  the  causam  nobis  significes  (on  the 
alias  or  pluries  replevin),  as  a  cause  wh}^  he  could 
not  execute  the  writ.  The  plaintiff  might  then 
sue  his  writ  de  proprietate  probanda,  if  he  wanted 
possession  of  his  goods  ;  and  if  the  title  was  found 
for  him,  the  sheriff  delivered  the  goods  to  the  plain- 
tiff, and  gave  the  defendant  a  day  in  court ;  and 
the  plaintiff  went  on  to  declare  for  the  unjust  cap- 

>  Wilk.  Repl.  U. 


AITD    HISTORY.  63 

tion,  and  also  the  subsequent  injustice  of  the  de- 
fendant, in  claiming  the  goods  as  his  own.  The 
return  of  the  inquest  was  no  bar  to  the  defendant, 
but  he  might  still  plead  property,  and  have  it  de- 
termined by  a  verdict,  at  the  pei'il,  however,  of  an 
attaint.  Tf  on  the  inquest  of  office  the  property 
was  found  against  the  defendant,  he  w^as  subject 
to  a  fine  for  his  false  claim,  and  to  damages  to  the 
party  from  whom  he  had  kept  his  goods  in  the 
mean  time.^ 

If  the  defendant  claims  property,  the  sheriff 
cannot  proceed  f  but  he  returns  that  fact  on  his 
writ.  IsTeither  the  defendant  nor  the  sheriff  has 
any  further  control  over  the  cause,  and,  as  a  con- 
sequence, it  is  said,  in  some  places,  that  the  claim 
of  property  is  a  determination  of  the  suit.^  This, 
however,  is  not  altogether  consistent  with  the 
practice,  as  stated  by  Chief  Baron  Gilbert,  or  with 
the  form  and  character  of  the  writ  de  proprietate 
probanda.  This  writ,  all  authorities  agree,  can 
only  be  issued  at  the  instance  of  the  plaintiff,  upon 
which  an  inquest  of  office  is  held  by  the  sheriff, 
and  if  they  find  against  the  claim  of  the  defendant, 
then  the  sheriff  is  commanded  at  once  to  make  de- 

^  Gilb.  Repl.  99.  '  Co.  Lit.  145. 

^  Gowen  v.  Ludlow,  Moore,  403.  Yin.  Ab.  Repl.  F.  5. 
Lesher  v.  Pierson,  11  Wend.  61. 


64  KEPLEVIN,   ITS   ORIGIN 

liverance  to  the  plaintiff,  the  writ  running,  "et  si 
per  inqiiisitionem  illam  tibi  con  stare  poterit,  quod 
averia  vel  catalla  pdict  sint  pdict  A,  tunc  ea,  eidem 
A  replegiari  facias,  juxta  tenorem  mandatorum 
nostrorum  prius  tibi  ante  directorum."  The  writ 
goes  on  to  give  the  defendant  a  day  in  court,  where 
he  may  plead  property  and  have  the  right  setted 
by  a  verdict.  If,  however,  the  inquest  of  office  is 
found  in  favor  of  the  defendant,  then  there  is  an 
end  of  the  suit ;  for  the  sheriff  is  not,  by  the  writ 
de  proprietate  probanda,  to  deliver  the  goods  to 
the  plaintiff,  unless  the  jury  find  them  to  be  the 
plaintiff's,  and  if  the  defendant  has  the  goods,  and 
possesses  them  as  his  own,  they  cannot  proceed  in 
an  action,  which  supposes  the  goods  to  be  re- 
delivered to  the  plaintiff. 

Pending  this  proceeding  the  property  remained 
in  the  possession  of  the  defendant,  and  if  removed 
or  secreted  before  the  return  of  the  inquest,  the 
plaintiff  had  no  other  remedy  than  the  capias  in 
withernam,  which,  unless  the  defendant  was  a  man 
of  substance,  was  not  a  very  secure  dependence  for 
the  plaintift. 

The  practice  in  Pennsylvania  and  some  of  the 
other  States  of  requiring  "a  claim  property  bond," 
has,  in  this  aspect  of  the  matter,  considerable  ad- 


AND    HISTORY.  65 

vantage  over  the  old  proceeding,  as  will  be  more 
fully  exhibited  in  the  chapter  on  the  claim  property 
bond. 

In  England,  Wilkinson  tells  ns,  all  cases  of  the 
least  importance  are  removed  from  the  inferior  to 
the  superior  courts,  because  the  statute  which 
creates  the  writ  of  second  deliverance,  extends  only 
to  the  superior  courts  of  justice;  and,  therefore, 
the  defendant  may,  in  many  cases  in  the  county 
court,  be  subjected  to  a  new  replevin;  for,  as  Chief 
Baron  Gilbert  expresses  it,  "as  long  as  the  cap- 
tion and  detention  were  not  determined  by  the 
judgment  of  the  court,  so  long  they  allowed  the 
plaintiff,  after  his  own  non-suit,  to  take  a  new 
replevin."^ 

At  common  law  the  distress  was  merely  a  pledge 
to  compel  the  payment  of  certain  dues,  or  the  per- 
formance of  certain  services.  The  distrainor  had 
no  right  to  sell  it  to  satisfy  his  claim.  And  after 
an  action  of  replevin,  the  eftect  of  the  judgment 
of  retorno  habendo,  was  merely  to  put  him  in  the 
condition  in  which  he  was  before  the  action  was 
begun.  That  is  to  say,  the  beasts  or  chattels  were 
returned  to  him  merely  as  a  pledge  to  be  retained 

'  Gilb.  Repl.  170. 


(36  KEPLEVIN^,    ITS    ORIGIN" 

until  the  rent  or  duty  for  which  they  were  taken 
was  paid  or  satisfied.  And  it  was  often  the  case, 
that,  pending  the  first  writ  of  replevin,  the  dis- 
trainor would  distrain  a  second  time  for  the  same 
rent  or  service,  but  since  he  had  already  security 
to  have  return  upon  making  out  the  justice  of 
his  first  caption,  it  was  highly  reasonable,  that, 
pending  that  suit,  the  tenant  should  be  protected 
from  further  distresses,  for  the  same  rent  or  cause, 
for  which  the  first  distress  was  taken.  For  this 
purpose  the  writ  of  re-caption  was  framed;  in 
which,  if  the  defendant  was  convicted,  he  was  fined 
to  the  king;  because,  by  the  second  caption,  he 
took  upon  him  to  determine  the  justice  and  legality 
of  the  first,  while  that  very  point  was  under  the 
consideration  of  the  court  of  justice  in  which  the 
replevin  depended.  For  if  the  first  distress  were 
lawful,  he  should  have  return  of  it ;  and,  therefore, 
the  second  was  unreasonable.  If  the  first  were 
unlawful,  much  more  so  was  the  second  taking  for 
the  same  cause ;  so  that  the  re-caption  lay  even 
where  the  cause  of  the  first  caption  was  just.^ 

This  writ  issued  only  when  the  second  distress 
was  for  the  same  cause  as  the  first ;  and,  therefore, 
if  A.  distrained  beasts  damage  feasant,  and  pending 

'  Gilb.  Repl.  180, 181.     F.  N.  B.  71. 


AND    HISTORY.  67 

that  suit,  the  same  cattle  or  other  cattle  of  the  same 
l^roprietors,  trespassed  on  the  soil  of  A.,  A.  might 
distrain  again,  pending  the  first  suit;  because  each 
distress  was  for  a  distinct  and  several  trespass  or 
injury,  for  which  A.  was  entitled  to  satisfaction.^ 
For  the  proceedings  on  this  writ  see  Gilbert,  180, 
&c.,  or  Wilkinson,  132,  &c. 

In  Maine,  Vermont,  Massachusetts,  Kew  York, 
'New  Hampshire,  Ohio,  Delaware,  Kentucky,  Mis- 
souri, Mississippi,  Wisconsin,  Arkansas,  Tennessee, 
Michigan,  Minnesota,  Indiana,  Ehode  Island,  Illi- 
nois, Connecticut,  and  Oregon,  and  probably  other 
States,  the  action  of  replevin  is  regulated  by 
statute,  and  is  free  from  much  of  the  complication 
exhibited  in  the  preceding  pages. 

In  Pennsylvania  all  replevins  are  by  force  of  the 
act  of  assembly  of  1705,  and  are  by  writ  returnable 
in  the  court  of  common  pleas  of  the  respective 
counties,  there  to  be  determined  according  to  law." 

The  action  is  begun  by  a  precept  from  the  plain- 
tiff or  his  attorney  to  the  prothonotary  of  the  court, 
requiring  him  to  issue  the  writ  for  certain  enume- 
rated articles.  The  person  in  possession  of  the 
articles  is  made  defendant.^     The  writ  is  addressed 

1  Gilb.  Repl.  180,  181.     F.  N.  B.  71. 

^  1  Siu.  Laws,  44.  '  English  v.  Dalbrow,  1  Miles,  160. 

0 


68  REPLEVIN",    ITS    OEIGl]^ 

to  the  sheriff  of  the  proper  county,  and  commands 
him,  if  the  plaintiff  make  him  secure  of  prosecuting 
his  claim  against  the  defendant,  to  deliver  to  the 
plaintiff  certain  articles  enumerated,  of  a  certain 
value,  his  property,  and  to  summon  the  defendant 
to  appear  at  a  certain  day.^ 

Great  changes,  it  will  be  perceived,  were  effected 
by  the  act  of  1705,  both  in  the  form  and  character 
of  the  remedy.  It  does  not  recognize  the  replevin 
by  plaint,  and  makes  the  replevin  in  all  cases  a 
returnable  writ,  to  which  the  appearance  of  the 
defendant  is  required  as  in  other  actions.  The 
action  is  not  altogether  an  action  in  rem,  for  a 
summons  to  the  defendant  is  always  inserted,  and 
a  precise  day  given  for  his  appearance  in  the  court 
of  common  pleas,  where  writs  of  replevin  are  re- 
quired to  be  determined.^  If  the  officer  is  pre- 
vented from  delivering  the  goods  by  the  conduct 
of  the  defendant,  from  his  having-  eloio^ned  or  other- 
wise  disposed  of  them,  the  plaintiff  may  go  on  and 
recover  against  him  in  damages.^  The  sheriff,  it 
seems,  has  no  right  to  serve  the  summons  on  the 

*  See  form  of  Precipe  in  Appendix. 
'  Weaver  v.  Lawrence,  1  Dall.  157. 

■''  Bower  v.  Tallman,  5  W.  &  S.  561.     Baldwin  u.  Cash,  1  W. 
&  S.  426. 


A^D   HISTORY.  69 

defendant  and  so  return  it,  with  an  averment  that 
he  did  not  deliver  the  goods  because  the  plaintiff 
had  not  indemnified  him  ;^  he  should  do  nothing 
until  indemnified.  The  proceeding  by  withernam 
appears  never  to  have  been  resorted  to,  and  it 
would  seem  that  there  never  was  much  advantasfe 
from  it,  as  a  plea  of  non  cepit  or  property  would 
at  once  supersede  it.^  The  writ  is  not  liable  to  be 
defeated  on  a  claim  of  property,  but  goes  on  to 
its  regular  termination,  as  in  other  cases.  Instead 
of  the  claim  of  property  arresting  the  proceedings, 
and  throwing  on  the  plaintiff  the  burden  of  the 
writ  de  proprietate  probanda,  the  defendant  on 
claim  of  property  is  allowed  to  retain  the  goods, 
only  on  giving  bond  to  the  sheriff  to  abide  the 
judgment  of  the  court,  if  on  the  trial  the  property 
should  not  be  found  in  him. 

It  has  been  determined  in  Pennsylvania  that  the 
giving  of  the  claim  property  bond  puts  the  property 
in  the  defendant,  that  thenceforth  the  question  is 
only  as  to  the  damages,  the  thing  itself  is  from  that 
time  lost  to  the  plaintiff.  This  takes  away  the 
value  of  the  action  in  all  cases  where  the  real  con- 

^  Taylor  v,  Adams  Exp.  Co.,  per  Sharswood  J.,  at  nisi  prius, 
Leg.  Intelligencer,  Feb.  7,  1873,  page  46.     9  Phil.  R.  272. 

^  Gilb.  Repl.  93,  94.  Moore  v.  Watts,  1  Lord  Ray.  614. 
Delabastich  v.  Reynell,  Carth.  287. 


70  REPLEVIN,    ITS    ORIGIN 

troversy  is  for  the  ownership  and  possession  of  the 
thing  itself,  the  money  value  being  of  no  conse- 
quence to  the  parties/ 

If  he  fail  to  give  bond,  the  property  is  delivered 
to  the  plaintiff.  In  this  respect,  the  law  of  Penn- 
sylvania is  not  as  liberal  to  the  defendant  as  the 
common  law,  which  left  the  goods  in  his  possession 
on  claim  of  property,  until  the  plaintiff  by  proceed- 
ings on  the  writ  de  proprietate  probanda  established 
the  falsity  of  the  claim.  As,  however,  the  goods 
were  left  in  the  possession  of  the  defendant  with- 
out security,  and  he  might  dispose  of  or  consume 
them  at  his  pleasure,  reparation  for  which  would 
depend  upon  'his  possession  of  propert}^,  justice  is 
more  likely  to  be  done  by  the  present  mode  of  pro- 
ceeding. 

H^either  the  writ  of  recaption,  nor  the  writ  of 
second  deliverance,  is  known  in  Pennsylvania 
practice. 

A  second  replevin,  and  probably  an  action  of 
trespass,  would  seem  to  be  the  only  remedies  for 
the  oppressive  conduct  which  the  writ  of  recaption 
was  designed  to  meet.     While  the  Uability  of  the 

^  See  end  of  Ch.  xi. 


AND    HISTOKY.  71 

sureties  in  the  replevin  bond,  and  of  the  sheriif, 
have  hitherto  been  found  a  sufficient  protection 
against  the  abuse,  which  gave  rise  to  the  writ  of 
second  deliverance. 

Where  the  statute  of  Edward  First,  or  a  similar 
act,  is  not  in  force,  there  does  not  appear  to  be 
anything  to  prevent  a  second  action  of  replevin 
after  a  non-suit.^  In  a  case  in  Indiana  where  the 
plaintiff  having  obtained  possession  of  the  property 
by  giving  bond  suffered  a  non-suit  at  the  trial,  it 
was  held  that  the  defendant  had  a  right  under 
section  182  R.  S.  to  prove  his  title  to  the  goods 
replevied,  and  thereupon  have  judgment  for  their 
return,  and  a  writ  of  inquiry  for  the  assessment 
of  damages  for  the  detention.^  In  Illinois  the 
defendant  under  such  circumstances  may  retake 
the  goods  by  replevin  and  also  proceed  on  the  bond.^ 

The  revised  statutes  of  !N"ew  York  prohibited 
the  action  under  such  circumstances,  and  also  took 
away  the  writ  of  second  deliverance,  and  all  writs 
of  withernam.    The  code  of  procedure  has  abolished 

^  Daggett  V.  Robins,  2  Blackf.  415.  See  Barrett  v.  Forrester, 
Col.  &  Caines,  95. 

'''  Mikesill  v.  Chaney,  6  Ind.  52. 
'  Bruner  u.  Dyball,  42  111.  34. 


72  REPLEVIN,   ITS   ORIGIN" 

the  writ  of  replevin,  as  well  as  all  other  writs,  and 
established  a  new  method  by  which  the  same  end 
is  to  be  obtained.    It  will  be  found  in  the  appendix. 

In  England  it  appears  that  notwithstanding  the 
2  AV.  and  M.,  Ch.  5,  the  distress  may  still,  at  the 
landlord's  option,  be  retained  as  a  pledge,  the 
provisions  in  that  act  for  a  sale  not  being  impera- 
tive.^ 

In  Pennsylvania  a  different  construction  has 
been  put  upon  the  similar  act  of  the  21st  of  March, 
1772,  which,  among  other  things,  enacts,  that  where 
the  tenant  or  owner  of  goods  distrained  for  rent, 
shall  not,  within  five  days  next  after  such  distress 
taken,  and  notice  thereof,  replevy  the  same,  then 
the  person  distraining,  shall  and  may,  with  the 
sheriff,  under-sheriff,  or  any  constable,  &c.,  cause 
the  goods  to  be  appraised  by  two  respectable  free- 
holders ;  and  after  such  appraisement,  shall  or  may, 
after  six  days'  public  notice,  lawfully  sell  the  goods 
for  the  best  price  that  can  be  gotten  for  the  same, 
for  and  towards  satisfaction  of  the  rent  and  charges 
incurred,  leaving  the  overplus,  if  any,  in  the  hands 
of  the  sheriff,  under-sheriff,  or  constable,  for  the 
owner's  use. 

'  Hudd  V.  Ravenor,  2  B.  &  B.  662.  Lear  v.  Edmonds,  1  B. 
&  Aid.  157.     Lingham  v.  Warren,  2  B.  &  B.  36. 


a:n^d  history.  73 

Judge  Kennedy,  in  delivering  the  opinion  of  the 
court  in  Quin  v.  Wallace,'  after  citing  numerous 
authorities  to  the  point,  that  the  word  "  may," 
when  used  in  a  statute,  where  the  public  interests 
and  rights  are  concerned,  is  equivalent  to  must, 
and  imperative — proceeds  at  some  length  in  sup- 
port of  the  position  that  the  words  of  the  act  of 
21st  March,  1772,  are  imperative  for  a  sale,  and 
concludes  as  follows :  "  It  must  be  admitted,  how- 
ever, that  Chief  Justice  Dallas  and  Mr.  Justice 
Bayley  have  expressed  opinions  in  opposition  to 
this.  In  Hudd  v.  Ravenor,  2  B.  &  B.  662,  6  Eng. 
C.  L.  E.  306,  where  it  was  ruled  that  a  plea  of  a 
former  distress  for  the  same  rent  was  not  good, 
because  it  was  not  alleged  that  the  rent  was  satis- 
fied, Dallas,  C.  J.,  in  delivering  his  opinion  as  to 
the  plea,  seems  to  have  thought  that  unless  the 
words  shall  and  may,  used  in  the  statute  3  W.  and 
M.  sess.  1,  ch.  5,  s.  2,  from  which  the  section  of 
our  act  under  consideration  is  merely  a  copy,  would 
be  construed  as  giving  only  a  discretionary  power 
to  the  landlord  to  sell,  the  plea  might  have  been 
considered  good.  The  main,  and  indeed  only,  ob- 
jection mentioi;^d  by  him  to  its  being  considered 
compulsory  on  the  landlord,  is,  that  after  a  seizure 
he  could  never  come  to  any  terms  of  agreement 

^  6  Whart.  452. 


74  REPLEVIN,    ITS    ORIGIN^ 

with  his  tenant.     But  surely  this  is  a  great  mis- 
take, because  the  parties,  by  their  agreement,  may 
make  the  law  what   they  please   in  this   respect. 
And  Mr.  Justice  Eichardson  seems  to  have  thought 
so,  when  he  said  in  the  same  case,  'I  am  not  satis- 
fied that  the  statute  of  W.  and  M.  is  imperative  as 
to  the   sale;    but   suppose   it   is    so,  that   statute 
never  meant  to  preclude  the  parties  from  ending 
the  proceedings.'    And  Mr.  Justice  Bayley,  in  Lear 
V.  Edmonds,  1  B.  &  Aid.  157,  where  a  similar  plea 
was  put  in  by  the  defendant,  and  considered  not 
good,  because  the  statute  of  W.  and  M.,  as  he  says, 
is  that  the  party  distraining  may  sell  the  goods, 
not  that  he  must  sell ;  and  if  so,  then  he  asks,  does 
not  the  landlord  stand  as  he  did  at  common  law 
before  the  statute?  for  it  is  not  averred  that  the 
goods  were  sold.      It  is  sufficient  answer  to  Mr. 
Justice  Bayley,  that  he  does  not  quote  the  words 
of  the  statvite  correctly;   for  he  has  omitted  the 
word  shall,  as  if  it  were  of  no  import  or  force  wliat- 
ever.      These  opinions  as   to  the  construction  of 
the  statute  W.  and  M.,  though  coming  from  very 
highly  respectable  judges,  would  appear  to  have 
been  advanced  without  much  consideration,  with- 
out any  satisfactory  course  of  reasoning  to  support 
them,  and  in  direct  opposition  to  the  principle  laid 
down  and  established  in  the  king's  bench,  in  Vas- 


AKD    HISTORY.  7o 

per  V.  Edwards/  They  therefore  can  have  no 
influence  upon  our  judgment  in  giving  to  our  act, 
in  relation  to  the  same  matter,  a  different  construc- 
tion, when  its  various  provisions,  as  well  as  the 
language  employed,  would  seem  to  require  it. 
Considering,  then,  as  we  do,  our  act  as  to  the  sale 
of  the  goods  to  be  imperative  on  the  landlord,  it 
w^ould  seem,  therefore,  to  give  to  the  distress  the 
character  of  an  execution." 

In  ISTew  York,  after  the  distress  has  been  duly 
made,  if  the  goods  be  not  replevied  within  five  days 
after  notice,  the  revised  statutes  provide,  that  the 
goods  shall  be  forthwith  appraised  and  sold  at 
public  vendue,  under  the  superintendence  of  a 
sheriff  or  constable,  towards  satisfaction  of  rent.^ 

'  1  Lord  Ray.  719.     12  Mod.  658. 

2  3  Kent  480.     2  Rev.  Stat.  N.  Y.  504. 


CHAPTEE    II. 

FOR  WHAT  REPLEVIN^  WILL  LIE. 

Replevest  lies  for  all  goods  and  chattels  unlaw- 
fully taken  or  detained,  and  may  be  brought  when- 
ever one  person  claims  personal  property  in  the  pos- 
session of  another,^  and  this  whether  the  claimant 
has  ever  had  possession  or  not,^  and  whether  his 
property  in  the   goods   be  absolute  or  qualified,^ 

^  Weaver  v.  Lawrence,  1  Dall.  157.  Snyder  v.  Vaux,  2  R. 
428.  Shearick  v.  Huber,  6  Binn.  3.  Stoughton  v.  Rappalo,  3 
S.  &  R.  562.  Pearce  v.  Humphrej^s,  14  S.  &  R.  25.  Bower  v. 
Tallman,  5  W.  &  S.  561.  Boughton  v.  Bruce,  20  Wend.  234. 
Roberts  v.  The  Dauphin  Bank,  7  Harris  71.  Young  v.  Kim- 
ball, 11  Harris  193.  Trapnall  v.  Huttier,  1  Eng.  18.  Baer  v. 
Martin,  2  Ind.  229. 

^  Woods  V.  Nixon,  Addison  134.  Harlan  v.  Harlan,  3 
Harris  507.  Sayward  v.  Warren,  27  Maine  453.  Beebe  v.  Du 
Baun,  3  Eng.  510.  Osgood  u.  Green,  10  Foster  (N.  H.)  210. 
Chinn  v.  Russell,  2  Blackf.  172. 

»  Whetwell  v.  Wells,  24  Pick.  25.  Gordon  v.  Harper,  7  T. 
R.  9,  Johnson  v.  Hunt,  11  Wend.  137.  Rogers  v.  Arnold,  12 
Wend.  30.  Hunt  v.  Chambers,  6  Penn.  Law  Jour.  82.  Smith 
V.  Williamson,  1  Har.  &  J.  147.  Mildrum  v.  Snow,  9  Pick.  441. 
Seibert  v.  M'Henry,  6  W.  303. 


POR   WHAT   REPLEVIN    WILL    LIE.  77 

provided  he  has  the  right  to  possession/  Articles 
carried  about  the  person  of  the  defendant  or  worn 
by  him  cannot  while  so  worn  or  carried  be  taken 
from  him  by  this  writ.^  In  Illinois  an  affidavit  of 
ownership  in  the  plaintiff  with  a  positive  averment 
therein  that  the  property  has  not  been  taken  for  any 
tax  levied  by  virtue  of  any  law  of  the  State,  and 
that  the  property  is  personal  property,  must  precede 
the  writ.  3d  Sect.  Art.  1839.'  One  who  has  the 
mere  charge  or  custody  of  goods  cannot  maintain 
replevin.^  The  owner  is  in  constructive  possession, 
although  a  bailee  may  have  actual  possession.'^  In 
Indiana  it  is  held  that  as  against  a  wrong-doer  the 

'  Gilb.  Repl.  119.  Co.  Lit.  145,  b.  Winch.  26.  Hay  thorn 
V.  Rushford,  4  Harr.  R.  160.  Harris  v.  Smith,  3  S.  &  R.  20. 
Wheeler  v.  Train,  3  Pick.  255,  4  Pick.  168.  Collins  v.  Evans, 
15  Pick.  63.  Mead  v.  Kiklay,  2  Watts  110.  Lester  v.  McDowell, 
6  Harris  91.  Lee  v.  Gould,  11  Wriglit  398.  Hunt  v.  Cham- 
bers, 1  New  Jersey  620.  Bradley  v.  Michael,  1  Smith  346. 
Furgnson  v.  Thomas,  26  Maine  499.  Pierce  v.  Stephens,  30 
Maine  184.  Partridge  v.  Swaby,  46  Maine  184.  Dunkin  v. 
McKee,  23  Ind.  44 1.  L.  S.  &  M.  Railway  v.  Ellsey,  4th  Weekly 
N.  548;  4  Norris.  Hunt  v.  Strew,  33  Mich.  85.  Spencer  u. 
Roberts,  42  Conn.  75. 

^  Moxham  v.  Day,  16  Gray  213,  220. 

»  McClaughrey  v.  Cratzenburg,  39  111.  lit.  Mt.  Carbon  C. 
&  R.  R.  R.  Co.  V.  Andrews,  53  111.  177. 

*  Harris  v.  Smith,  3  S.  &  R.  20.  Broadwater  v.  Dame,  10 
Mis.  277. 

^  Ely  V.  Ehle,  3  Comst.  N.  Y.  506. 


78  FOR   WHAT   EEPLEVIN   WILL    LIE. 

person  in  possession  is  entitled  to  retain ;  or  to  re- 
cover possession  by  this  action  whether  he  be  the 
owner  or  not.^ 

In  Maryland  this  writ  is  used  to  recover  the 
custody  of  an  apprentice  taken  or  detained  against 
the  will  or  consent  of  the  master.^ 

Every  possible  facility  appears,  from  the  first,  to 
have  been  given  to  the  use  of  this  action  in  Penn- 
sylvania. So  much  so,  that  at  the  date  of  the 
earliest  reports  in  that  State,  the  practice  of  using 
it,  in  all  cases  where  personal  property  was  claimed, 
was  so  fully  recognized  and  established,  that  it 
seems  not  to  have  been  thought  necessary  to  inquire 
exactly  into  the  extent  of  the  English  law  on  the 
subject.^  By  the  act  of  1705,  the  power  to  grant 
writs  of  replevin  is  conferred  in  cases  "where  re- 
plevins may  be  granted  by  the  laws  of  England." 
So  firmly  was  the  practice  rooted,  however,  that  to 
the  attempts  to  show  that  in  England  replevin  was 

^  Moorman  v.  Quick,  20  Inrl.  6t.  27  id.  298.  See  also  Wal- 
pole  V.  Smith,  4  Blackf.  304.   Yan  Xamee  v.  Bradley,  69  111.  299. 

2  1  Md.  Code,  Art.  5,  sect.  9. 

'  Weaver  v.  Lawrence,  1  Dall.  15Y.  Snyder  v.  Yaux,  2  R. 
428.  Shearick  v.  Huber,  6  Binn.  3.  Stoughton  v.  Rappalo,  3 
S.  &  R.  562.  Pearce  v.  Humphreys,  14  S.  &  R.  25.  Bower  v. 
Tallman,  5  W  &  S.  561.     Boughton  v.  Bruce,  20  Wend.  234. 


FOR   WHAT   REPLEVIN   WILL   LIE.  79 

confined  to  cases  of  unlawful  taking,  the  judges 
of  Pennsylvania  satisfied  themselves  with  saying, 
that,  however  it  might  be  in  England,  it  was  well 
settled  that  in  Pennsylvania  the  action  lay  in  all 
cases  where  one  man  claimed  personal  property  in 
the  possession  of  another/ 

'  That  this  was  the  opinion  with  regard  to  the  writ  at  a  very 
early  date  in  Pennsylvania  appears  by  the  following  extract 
from  the  Minutes  of  Provincial  Council,  vol.  1,  page  441,  under 
date  Sept.  24th,  1698.  The  lieut.-governor  laid  before  council 
a  case  in  which  Anthony  Morris,  as  judge  of  the  court  of 
common  pleas,  had  granted  a  replevin  for  goods  seized  by  the 
king's  collectors  for  having  been  imported  contrary  to  law. 
The  council  reproved  the  justices,  who  presented  the  following 
justification: — 

May  it  please  the  governor  and  council,  we,  the  justices  of 
the  coimty  court  of  Philadelphia,  understanding  that  some 
complaints  have  been  made  to  you  against  our  proceedings 
in  a  replevin  lately  granted  by  one  of  us  to  John  Adams, 
merchant,  returnable  to  our  last  court,  do  humbly  offer  this 
following  answer  for  our  vindication — 

Fu'st.  That  we  look  upon  a  replevin  to  be  the  right  of  the 
king's  subjects  to  have  and  our  duties  to  grant,  where  any 
goods  or  cattle  are  taken  or  distrained. 

Secondly.  That  such  writs  have  been  granted  by  the  justices, 
and  no  other  in  this  government,  the  parties  giving  bond  with 
sureties,  to  the  sheriff  for  redeliverance  of  such  goods  in  case 
the  plaintiff  in  the  replevin  be  cast,  according  as  is  usual  in 
England  in  such  cases. 

Thirdly.  That  since  we  understood  how  the  goods  in  ques- 
tion were  seized  and   secured  in  the  king's   store-house,  we 


80  FOR   WHAT    KEPLEYI?^   WILL    LIE. 

In  Kew  York  and  Massachusetts  the  question, 
whether  the  unlawful  detention  of  personal  pro- 
perty, which  had  come  lawfully  to  the  possession 
of  the  defendant,  could  be  remedied  by  replevin, 
seems  to  have  presented  itself  unembarrassed  by 
any  settled  practice  on  the  subject.  This  led  to  a 
thorough  investigation  of  the  English  doctrine; 
and  the  learned  judges  of  these  two  States  came  to 
directly  opposite  conclusions.  While  IS^ew  York 
held  that  the  action  lay  only  for  goods  unlawfully 
taken  and  detained,^  Massachusetts  argued  that 
even    at   common    law   replevin   was    the   proper 

might  have  just  grounds  to  conceive  that  the  sheriff  might  be 
as  proper  to  secure  the  same  to  be  forthcoming  in  specie,  as 
by  the  replevin  he  is  commanded,  as  that  they  should  remain 
in  the  hands  of  Robert  Webb,  who  is  no  proper  officer  as  we 
know  of  to  keep  the  same,  nor  hath  given  any  security  or 
caution  to  this  government  to  answer  the  king  and  his  people 
in  that  respect,  as  we  can  understand. 

Lastly.  That  we  at  our  last  court  finding  this  matter  to  be 
weighty,  though  we  did  not  know  of  any  court  of  admiralty 
erected,  nor  persons  qualified  as  we  know  of  to  this  day  to 
hold  such  court,  yet  we  forbore  the  trial  of  the  said  replevin, 
and  continued  it  until  we  further  advised,  and  so  the  parties 
are  to  come  before  us  again  at  next  court,  when  we  should  be 
glad  to  receive  some  advice  herein  from  you ;  and  rest  your 
loving  friends,  Anthony  Morris,  Samuel  Richardson,  James 
Fox.     Philadelphia,  27th  Tth  month,  1698. 

^  Pangburn  v.  Patridge,  7  Johns.  140.  Barrett  v.  Warren, 
3  Hill  348.    But  see  Zachrisson  v.  Ahman,  2  Sand.  Sup.  C.  R.  68. 


FOR   WHAT    EEPLEVI:N^   WILL    LIE.  81 

remedy  for  goods  unlawfully  detained,  without 
reference  to  the  mode  by  which  the  possession  of 
the  defendant  had  been  acquired.^  I*^ew  York  is 
supported  by  a  goodly  array  of  English  authorities.^ 
The  able  argument  of  the  court  of  Massachusetts, 
upon  the  reason  of  the  question,  is  fortified  by 
many  examples  from  the  English  books  in  support 
of  their  position.  The  well-known  case  of  replevin, 
after  tender  of  amends,  for  cattle  taken  damage 
feasant,  when  the  original  taking  was  lawful,  but 
the  detention  became  unlawful  by  reason  of  the 
tender.  And  the  case  in  Siderfin,^  of  the  colt  foaled 
in  the  pound,  which  was  never  taken  by  the  defen- 
dant, and  yet  was  unlawfully  detained;  also  the 
cause  in  Lilly's  entries,'^  where  the  defendant  avowed 
that  he  had  rescued  the  goods  from  the  sea,  and 
claimed  salvage  ;  and  the  very  late  case  of  replevin 
for  taking   and   impounding,  in  which   though   a 

'  Ilsley  V.  Stubbs,  5  Mass.  284.  Badger  v.  Phinney,  15  Mass. 
359.  Baker  v.  Fales,  16  Mass.  147.  Marston  v.  Baldwin,  17 
Mass.  606. 

''  3  Steph.  Com.  524.  Ex  Parte  Chamberlain,  1  Schoales 
&  Lefroy's  Rep.  320.  Sliannon  u.  Shannon,  lb.  324,  per  Ld. 
Redesdale.  Galloway  v.  Bird,  4  Bing.  299.  Gulliver  v.  Cosens, 
1  Mann.  Grang.  &  Scott  788.  George  v.  Chambers,  11  M.  & 
W.  149.     And  see  Meany  v.  Head,  1  Mason's  C.  C.  R.  319. 

'  Arundle  v.  Trevill,  Sid.  81,  82.     Gilb.  Repl.  131. 

*  Jacobsen  v.  Lee,  Lilly's  Entries  349. 


82  FOR   WHAT   REPLEVIN   WILL    LIE. 

tender  after  the  taking  and  before  impounding  was 
pleaded  and  demurred  to  because  the  lawfulness  of 
the  original  taking  was  not  disputed,  Lord  Denman 
held  the  plea  good,  and  said  every  unlawful  deten- 
tion was  a  new  taking,^  afford  some  evidence  that 
the  action  was  not  originally  confined  to  cases  of  an 
unlawful  taking,  or  of  any  taking  from  the  posses- 
sion of  the  plaintiff. 

Judge  Putnam  argues  as  follows:  "It  is  said 
that  in  the  case  put  in  Fitz.  ^N.  B.  69,  '  That  if  a 
man  take  cattle  damage  feasant,  and  the  other 
tender  sufficient  amends,  and  he  refuses  to  deliver 
them  .back ;  if  he  sue  replevin,  he  shall  recover 
damages  only  for  the  detention,  and  not  for  the 
taking,  for  that  was  lawful ;'  the  defendant  became 
a  trespasser  ab  initio,  because  he  abused  a  license 
of  the  law ;  and  so  the  original  taking  was  to  be 
considered  as  tortious :  and  thus  this  case  is  to 
be  reconciled  to  the  general  doctrine  requiring  a 
tortious  taking  to  enable  the  plaintiff  to  maintain 
replevin. 

"  But  the  writers  who  mention  this  case  speak  of 
it  as  one  where  replevin  will  lie ;  and  where  damages 
are  recovered  for  the  unjust  detention,  and  not  for 

>  Evans  v.  Elliott,  5  Adol.  &  Ellis  142. 


FOR   WHAT    REPLEVIN   WILL    LIE.  83 

the  unjust  taking;  which  certainly  would  be  the 
rule,  if  the  defendant  was  to  be  considered  as  a 
trespasser  ab  initio.  'Now  I  do  not  perceive  how 
the  distinction  between  the  abuse  of  the  license  of 
the  law  and  the  license  of  the  party  will  be  very 
material.  The  rule  is  very  well  stated  in  12  Edw. 
4,  8,  pi.  20:  'Where  a  man  does  a  thing  by  the 
authority  of  the  law,  and  afterwards  misdemeans 
himself,  his  first  act  shall  be  tortious.'  In  a  subse- 
quent case,  21  Edw.  4, 19,  Pigot  (who  was  a  coun- 
sellor) contended  that  there  was  no  difference 
between  the  license  of  the  law  and  of  the  party; 
but  the  court  adhered  to  it." 

"  To  apply  the  rule  to  the  case  at  bar :  the  goods' 
came  to  the  defendant's  hands  by  the  license  of 
the  law,  or  of  the  party.  Suppose  by  the  license 
of  the  law ;  then  if,  by  detaining  them  unjustly,  he 
becomes  a  trespasser  ab  initio,  the  plaintiff  is  to 
maintain  his  re])levin  on  the  ground  of  an  original 
tortious  taking.  But  suppose  they  came  to  the 
hands  of  the  defendant  by  the  license  of  the  party,, 
then  he  is  to  be  punished  only  so  far  as  he  abused 
the  authority.  From  that  time  only  he  becomes  a 
trespasser,  not  from  the  beginning;  but  as  Lord 
Coke  expresses  it  in  the  six  carpenters'  case,  '  he 
shall  be  punished  for  his  abuse  of  it.'  The  dis- 
7 


84  TOR    WHAT    REPLEVIN   WILL    LIE. 

tinction,  therefore,  goes  only  to  the  damages  to  be 
recovered." 

To  which  it  may  be  added,  that  in  the  case  put 
in  Fitzherbert,  the  distrainor  would  not,  according 
to  the  resolves  in  the  six  carpenters'  case,  be  a 
trespasser  ab  initio.  It  was  resolved  per  totam 
curiam,^  that  not  doing  cannot  make  the  party,  who 
has  authority  or  license  by  the  law,  a  trespasser 
ab  initio,  because  not  doing  is  no  trespass,  and 
therefore  if  the  lessor  distrains  for  his  rent,  and 
thereu]^x)n  the  lessee  tenders  him  the  rent  and 
arrears,  &c.,  and  requires  his  beasts  again,  and  he 
will  not  deliver  them,  this  not  doing  cannot  make 
him  a  trespasser  ab  initio.  The  same  doctrine  has 
been  repeatedly  recognized  since.^ 

According  to  Braeton,  "The  questions  arising 
on  the  detention  of  a  Kamium,  related  either  to  the 
cajiUon  or  detention  against  gage  and  pledge.  The 
caption  might  be  just  or  unjust.  It  was  just  when 
taken  for  a  service  withheld  by  a  person  who  ac- 
knowledged the  service  to  be  due,  and  in  that  case 
the  taker  might  avow  the  takmg ;  but  if  the  things 

'  8  Co.  290. 

*  Gates  V.  Lownsburj,  20  Johns.  427  Hale  v.  Clark,  19 
Wend.  498.  Bell  v.  North,  Littell's  Rep.  133.  Waterbury  v. 
Lockwoodj  4  Day  257. 


FOR   WHAT   REPLEVIN^   WILL   LIE.  85 

justly  SO  taken  were  detained  against  gage  and 
pledge,  after  security  was  offered  for  payment  for 
the  service,  and  all  arrears,  then,  though  the  cap- 
tion might  be  just,  the  detention  was  unjust."^ 
And  if  the  lord  defended  the  unjust  detention,  the 
sheriff  went  on  to  hear  and  determine  it. 

In  the  case  of  Galloway  v.  Bird,^  which  was  re- 
plevin for  goods  detained  by  a  carrier,  C.  J.  Best 
seems  to  narrow  the  exception,  and  says,  "The 
authorities  all  lay  it  down  that  replevin  can  only 
be  maintained  where  goods  are  taken,  not  where 
they  are  delivered  upon  a  contract."  But  even 
this  will  hardly  stand  with  Lord  Denman's  ruling, 
that  every  unlawful  detention  is  a  taking,^  suffi- 
cient to  support  the  averment  in  the  narr.,  and  this 
was  the  opinion  of  the  supreme  court  of  Pennsyl- 
vania in  Mackinley  v.  M'Gregor.'' 

This  whole  question  has  been  gone  over  by  Mr. 
Justice  Coleridge  in  the  case  of  Mennie  v.  Blake, 
6  Ellis  and  Black  843,  and  the  conclusion  reached 
that  there  must  be  a  tortious  taking  to  support 
replevin.  In  Delaware  there  must  be  a  tortious 
taking.^ 

1  Bracton  156,  2  Reeves'  Hist.  C.  L.  88  Edition,  1869. 

*  4  Bing.  299 

'  Evans  v.  Elliott,  5  Adol.  &  Ellis  142.  *  3  Whart.  369. 

^  Drummond  v.  Hopper,  4  Harrington  327. 


86  FOR    WHAT   EEPLEVi:sr   WILL    LIE. 

The  question  in  both  ]^ew  York  and  Massachu- 
setts was  afterwards  settled  by  statute.  The  re- 
vised statutes  in  each  giving  the  remedy  in  cases 
of  unlawful  detention  without  reference  to  the 
mode  by  which  the  possession  was  acquired. 

The  courts  of  ^N'ew  York,  however,  carried  their 
orginal  view  of  the  law  to  the  construction  of  the 
statute,^  and  determined  that  there  were  two  writs 
of  replevin  in  that  State :  one  in  the  cepit,  which  is 
the  old  action  of  replevin,  and  lies  exclusively  in 
cases  where  the  taking  has  been  unlawful;  the 
other,  in  the  detinet,  to  be  used  where  the  detention 
only  is  unlawful,  and  which  takes  the  place  of  the 
old  action  of  detinue.  This  division  rests  upon  a 
distinction  not  recognized,  except  in  ]N^ew  York, 
and  has  there  been  abolished  by  the  code  of  pro- 
cedure ;^  but  see  Revised  Statutes,  Tit.  XII.,  §  6. 

If  possession  has  been  obtained  by  delivery  or 
otherwise,  lawfully,  it  has  been  held  that  a  demand 
and  refusal  are  necessary  before  bringing  the 
action,''  but  that  they  need  not  be  proved,  if  the 

1  Barrett  v.  Warren,  3  Hill  348. 

^  Zachrisson  v.  Ahman,  2  Sandf.  Sup.  Ct.  68. 

^  Seaver  v.  Dingley,  4  Green  306.  Barret  v.  Warren,  3  Hill 
348.  Page  v.  Crosby,  24  Pick.  21L  Boughton  v.  Bruce,  20 
Wend,  234.     Ingalls  v.  Buckley,  13  111.  315.     Lewis  v.  Master, 


POK   WHAT   REPLEVrN"   WILL   LIE.  87 

defendant  pleads  propert}^  The  fact  of  demand 
and  refusal  need  not  be  alleged  in  the  declaration, 
but  is  matter  of  proof  on  the  issue  of  non  cepit,  and 
is  implied  in  the  allegation  that  defendant  took 
and  unjustly  detained  the  property/  But  where 
the  owner  of  a  horse  bailed  him  to  A.  for  use  for  a 
limited  period,  under  expectation  of  purchase  by 
the  latter,  and  A.,  for  a  valuable  consideration,  and 
without  notice,  sold  the  horse  to  B.,  and  he  to  the 
defendant,  it  was  held  that  no  previous  demand 
was  necessary  to  enable  the  owner  to  maintain  re- 
plevin against  the  last  purchaser.^  And  in  Illinois, 
where  a  sewing  machine  had  been  sold  and  delivered 
to  the  purchaser,  a  part  of  the  price  only  being  paid, 
the  balance  to  be  paid  in  instalments,  it  was  held 
that  the  vendor  could  not  maintain  replevin  for  the 
machine,  upon  the  purchaser's  refusal  to  make  further 
payment,  on  the  ground  that  the  machine  was  not 
such  as  he  had  contracted  for,  without  refunding  the 
money  already  paid,  together  with  a  demand  for  and 
refusal  to  return  the  machine.^ 

8  Blackf.  244.  Underwood  v.  Tatham,  1  Cart.  226.  Conner  v. 
Comstock,  11  Ind.  90.     White  v.  Brown,  5  Lans.  IS. 

^  Seaver  v.  Dinglej',  4  Green  306.  Gargrave  v.  Smith,  1  Salk. 
22L     B.  N.  P.  8L     Sir  R.  Bovey's  case,  1  Vent.  211. 

2  Galvin  u.  Bacon,  2  Fairf.  28.    McNeil  u.  Arnold,  17  Ark.  155. 

»  Hamilton  v.  The  Singer  Manuf.  Co.,  54  111.  370. 


88  FOE   WHAT    REPLEVIlSr   WILL    LIE. 

I*^emo  plus  juris  in  alium  transferre  potest  quam 
ipse  habet,  is  the  maxim  of  the  common  law.  In 
England,  if  a  man  buy  goods  or  take  them  on 
pledge,  and  they  turn  out  to  be  the  property  of 
another,  the  owner  has  a  right  to  take  them  out  of 
the  hands  of  the  purchaser,  unless  they  have  been 
sold  in  market  overt.  With  that  exception,  it  is 
incumbent  on  the  vendee  to  see  that  the  vendor 
has  a  good  title.^  Thus,  if  goods  be  let  on  hire, 
although  the  person  who  hires  them  has  the  posses- 
sion of  them,  for  the  special  purpose  for  which  they 
were  let,  yet  if  he  send  them  to  an  auctioneer  to 
be  sold,  he  is  guilty  of  a  conversion  of  the  goods ; 
and  if  the  auctioneer  afterwards  refuse  to  deliver 
them  to  the  owner,  unless  he  will  pay  a  sum  of 
money  which  the  auctioneer  claims,  he  is  guilty  of 
a  conversion.^  And  when  goods  are  obtained  on 
false  pretences,  and  with  a  preconceived  design  not 
to  pay  for  them,  it  is  a  fraud,  and  the  property  is 
not  changed.^ 

^  Hill  V.  Perrott,  3  Taunt.  2T4.  Bradbury  v.  Anderton,  1 
Cromp.  Mees.  &  Rose.  490.  Metcalf  v.  Lumsden,  1  Car.  &  K. 
309.     Peer  v.  Humphrey,  2  Adol.  &  Ellis  495. 

''  Loeschman  v.  Machin,  2  Starkie  276. 

^  Earl  of  Bristol  v.  Wilsmore,  1  Barn.  &  Cress.  521.  Peer  v. 
Humphrey,  2  Adol.  &  Ellis  495.  Abbot  u.  Barry,  5  Moore  98. 
Kilby  V.  Wilson,  R.  &  M.  1T8. 


FOR   WHAT    REPLEVIN"   WILL    LIE.  89 

The  true  owner  of  goods  which  have  been  stolen 
or  found,  or  bought  from  one  not  having  authority 
to  sell,  or  obtained  by  false  pretences  and  fraud, 
with  the  excejitions  hereinafter  stated,  may  recover 
them  by  replevin  wherever  he  finds  them,  and  it  is 
of  no  consequence  that  they  have  been  sold  at  public 
sale,^  or  transferred  to  an  assignee  for  the  benefit 
of  creditors.^ 

When  a  wagoner,  by  whom  goods  were  sent  to 
be  delivered  to  A.,  sold  them  openly  in  a  street  of 
a  city  to  B.,  it  was  held  that  the  sale  vested  no 
property  in  the  purchaser.^  And  C.  J.  Tilghman, 
in  delivering  the  opinion  of  the  court,  says:  "This 
is  so  plain  a  case  that  it  is  difficult  to  render  it 
plainer  by  argument.  The  defendant's  right  to  this 
property  (the  action  was  replevin)  is  just  as  good 
as  his  right  would  have  been  to  a  horse  which  he 
had  purchased  from  a  smith  to  whom  he  had  been 
sent  by  the  owner  for  the  purpose  of  being  shod ; 
or  to  a  coat,  which  he  had  purchased  from  a  tailor, 

1  Mackinley  v.  M'Gregor,  3  Wli.  396.  Buffington  et  al.  u. 
Gerrish,  15  Mass.  156.  Mowrey  v.  Walsh,  8  Cow.  238.  Thomp- 
son V,  Rose,  16  Conn.  tl.  Porter  v.  Foster,  20  Maine  391. 
Rowley  v.  Bigelow,  12  Pick.  307.  See  Penna.  Act  23  Sept.  1T80, 
§  7,  1  Sra.  Laws,  p.  511. 

'^  Farley  v.  Lincoln,  51  N.  H.  577. 

'  Lecky  v,  M'Dermott,  8  S.  &  R.  500. 


90  FOR   WHAT   REPLEVIN   WILL    LIE. 

who  had  received  it  with  orders  to  mend  and  return 
it.  M'Dermott,  who  deUvered  the  goods  in  ques- 
tion to  the  wagoner,  was  guilty  of  no  imprudence, 
nor  held  out  any  false  colors  by  which  the  world 
might  be  deceived."  And  Judge  Kogers,  in  a  sub- 
sequent case/  adopts  the  same  view,  and  in  deliver- 
ing the  opinion  of  the  court  says:  "The  rule  of  the 
common  law  is  caveat  emptor,  and  unlike  the  civil 
law,  the  possession  of  goods  is  but  prima  facie  evi- 
dence of  title,  with  some  exceptions." 

In  Ohio  it  has  been  decided,  that,  if  a  chattel  be 
sold  by  a  borrower  of  it,  the  owner  may  recover  it 
in  an  action  of  replevin  of  whomsoever  he  may 
find  in  possession  of  it.^  The  same  decision  would 
probably  be  made  in  Pennsylvahia,  subject,  of 
course,  to  an  inquiry  into  th^  bona  fides  of  the 
plaintiff's  conduct.  There  should  be  a  demand 
before  suit.^ 

When  a  sale  and  delivery,  or  exchange  of  pro- 
perty, has  been  procured  by  false  representations 
amounting  to  fraud,  the  vendor  may  insist  that  no 
title  passed  to  the  vendee,  and  in  such  case  he  may 
maintain  replevin  without  any  previous  demand. 

^  Rapp  V.  Palmer,  3  W.  178. 

"^  Roland  v.  Guud}',  5  Ohio  202.  Conner  v.  Comstock,  It 
Ind.  90. 


FOR   WHAT   REPLEVIN  WILL   LIE.  91 

But  before  he  brings  his  action,  he  must  restore  or 
oiFer  to  restore  to  the  other  party  the  whole  of  the 
consideration,  whether  money,  goods,  or  security, 
received  by  way  of  consideration  for  the  sale,  which 
might  be  of  any  value  to  either  party.'  The  note, 
whether  negotiable  or  otherwise,  of  the  fraudulent 
vendee,  not  actually  negotiated,  is  not  such  a  thing 
of  value  as  it  is  necessary  to  return.^ 

There  are  no  markets  overt  known  to  our  law  by 
a  sale  in  which  the  rights  of  the  true  owner  can  be 
bound.^  Caveat  emptor  is  the  rule  in  all  purchases 
of  personal  property,  since  no  one  can  transfer  a 
greater  right  therein  than  he  himself  has. 

So  completely  is  this  doctrine  of  market  overt 
repudiated,  that  replevin  lies  against  the  sheriff's 

^  Frost  V.  Lowry,  15  Ohio  200,  and  6  Penna.  Law  Jour.  326. 
Thayer  v.  Turner,  8  Met.  550.  Johnson  v.  Peck,  1  W.  &  M. 
334.     Pearsall  v.  Chapin,  8  Wr.  12.     Per  Lowrie,  C.  J. 

^  Thurston  v.  Blanchard,  22  Pick.  18.  Thayer  v.  Turner,  8 
Met.  550.     15  Ohio  200. 

'  Hosack  V.  Weaver,  1  Yeates  418.  Easton  v.  Worthington, 
5  S.  &  R.  130.  2  Yeates  348.  Dame  v.  Baldwin,  8  Mass.  519. 
Towne  v.  Collins,  14  Mass.  499.  Wheelwright  v.  Depeyster,  1 
Johns.  471.  Roland  v.  Gundy,  5  Ohio  203.  Heacock  v.  Walker, 
1  Tyler  341.  Browning  v.  M'Gill,  2  Har.  &  Johns.  308.  Act 
23d  Sept.  1780,  §  7,  Sm.  Laws,  p.  511. 


92  FOE    WHAT    REPLEVIN"    WILL    LIE. 

vendee  to  recover  the  possession  of  chattels  wrong- 
fully taken  in  execution  and  sold.^  To  prevent 
the  delay  of  public  justice,  and  the  unnecessary 
vexation  of  the  officers  charged  with  the  execution 
thereof,  the  right  to  the  writ  is,  in  Pennsylvania, 
taken  away  so  long  as  the  goods  are  in  the  posses- 
sion of  any  sheriff,  naval  officer,  constable,  collector 
of  the  public  taxes,  or  other  officer  acting  under 
the  authority  of  the  State. ^  The  statute  of  Con- 
necticut is  to  the  same  effect.^  The  service  of  a 
foreign  attacliment  on  a  transporter,  in  whose  hands 
the  goods  are,  does  not  so  place  them  in  the  custody 
of  the  law  as  to  prevent  their  stoppage  in  transitu 
by  a  replevin.^  Replevin  is  not  the  proper  remedy 
for  disregard  of  a  claim  to  exemption  under  the 
Pennsylvania  act  of  1849.^  The  possession  of  an 
assignee  in  banki'uptcy  cannot  be  interfered  with 
by  a  replevin  from  a  State  court.*^ 

^  Shearick  v.  Huber,  6  Binn.  2.  See  George  u.  Chambers,  11 
M.  &  W.  149. 

'  Act  3d  April,  1799, 1  Sm.  Laws  410.  See  Willarcl  v.  Kim- 
ball, 10  Allen  211,  and  New  York  Revised  Statutes,  Tit.  xii.  §  4. 

^  Howard  u.  Gandall,  39  Conn.  213. 

^  Hays  V.  Mouille,  2  Harris  48. 

*  Bonsall  v.  Comly,  8  Wr.  442.  See  Reynolds  v.  Sallee,  2 
B.  Mon.  18.     Sappel  v.  Welsh,  4  B.  Mon.  92. 

«  Ex  parte  Vogel,  2  Bank  Rep.  138,  427.  Bump's  Bank- 
ruptcy, 7  Ed.  291.     See  Barnes'  Appeal,  2G  P.  F.  S.  51. 


FOR   WHAT   EEPLEVIN^   WILL    LIE.  93 

Independently  of  the  statute,  replevin  will  not 
lie  for  goods  seized  for  non-payment  of  taxes. ^ 
Property  seized  for  the  non-payment  of  a  militia 
fine  is  within  this  statute.^  The  court  is  required, 
at  any  time  after  service,  on  motion,  to  quash  such 
Wilts  on  being  ascertained  of  the  truth  of  the  fact 
by  affidavit  or  otherwise.  A  sale  under  the  act 
concerning  strays  of  13th  April,  1807,  and  the 
supplement  thereto,  has  the  same  effect  as  a  sale 
in  market  overt  ;'^  as  also  proceedings  under  the 
act  of  22d  March,  1817,  prohibiting  horse-racing 
upon  the  public  roads  within  the  city  and  county 
of  Philadelphia.^ 

By  the  common  law  it  would  appear  that  re- 
plevin did  not  lie  for  goods  taken  by  the  sheriff"  by 
virtue  of  an  execution  from  a  superior  jurisdiction.'' 
In  Iowa  it  has  been  held  that  the  rule  does  not 
apply  if  the  execution  has  issued  in  consequence 

^  Stiles  V.  Griffith,  3  Yeates  82.  The  People  v.  Albany,  1 
Wend.  485.     Marriott  v.  Shaw,  Comyn's  Rep.  275. 

==  Pott  V.  01  wine,  7  Watts  173. 

'  Patterson  v.  M'Vey,  7  Watts  482.  See  Act  22d  March, 
1817,  §  7,  6  Sm.  Laws  432. 

*  Lev.  Ent.  152.  Lutw.  1191.  Gilb.  Repl.  121.  Smith  v. 
Huntington,  3  N.  Hamp.  Rep.  76.  Aylesbury  v.  Harvey,  3 
Lev.  Rep.  304. 


94  POR   WHAT   REPLEVIN   WILL    LIE. 

of  proceedings  under  an  unconstitutional  law.^  This 
distinction  is  over-refined  and  of  doubtful  utility. 
But  it  has  been  held  by  some  courts  that  a  stranger 
might  maintain  replevin  against  the  sheriff  for 
goods  taken  by  him  on  an  execution  against  a  third 
person.^  In  New  York,  before  the  present  code, 
it  was  held,  that  goods  taken  by  the  sheriff  out 
of  the  possession  of  the  defendant  could  not  be 
replevied  even  by  a  stranger;  but  if  the  sheriff 
undertook  to  levy  an  execution  against  one  man 
upon  goods  in  the  possession  of  another,  replevin 
might  be  maintained.^  The  Massachusetts  statute 
expressly  provides,  that  where  goods  of  the  value 
of  more  than  twenty  dollars,  attached  on  mesne 
process,  or  taken  in  execution,  are  claimed  by  any 
person  other  than  the  defendant  in  the  suit,  such 
person  may  have  a  replevin.^  The  simpler  practice 
would  be  to  claim  property  and  proceed  as  in  ordi- 
nary cases  where  that  defence  is  made.     But  the 

^  Cooley   V.   Davis,   34   Iowa    128.      See   Westenberger  v. 
Wheaten,  8  Kan.  169.     Mills  v.  Martin,  19  Johns.  7. 

^  Coursey  v.  Wright,  1  Har.  &  M'Henry  394.    Ladd  v.  North, 

2  Mass.  519.     Judd  v.  Fox,  9  Cow.  259.     Dunham  v.  Wyckoff, 

3  Wend.  280.     N.  York  Rev.  Statute,  Tit.  xii.  §  5. 

^  Thompson  v.  Button,  14  Johns.  84.     Garder  v.  Campbell, 
15  Johns.  401. 
*  Appendix  III.  p.  374. 


roR  WHAT  eeplevi:n"  will  lie.  95 

Massachusetts  practice  is  followed  in  several  of  the 

Western  States.^ 

But  if  the  real  owner  of  goods  suffer  another  to 
have  possession  of  his  pi-operty,  and  of  those  docu- 
ments which  are  the  indicia  of  ownership,  or  under 
circumstances  which  imply  a  right  to  sell,  then  a 
sale  by  such  a  person  would  bind  the  true  owner.^ 
Thus,  in  the  case  of  Kapp  v.  Palmer,  Judge  Rogers 
says  :'^  "I  fully  subscribe  to  the  doctrine  that  an 
agent  may  bind  his  principal  within  the  limits  of 
an  authority  with  which  he  has  been  apparently 
clothed  by  the  principal  in  respect  to  the  subject 
matter.  If  a  principal  send  a  commodity  to  a  place 
where  it  is  the  ordinary  business  of  the  person  to 
whom  it  is  confided  to  sell,  it  must  be  intended 
that  the  commodity  was  sent  thither  for  the  purpose 
of  sale.  Thus,  if  the  owner  of  a  horse  send  it  to  a 
repository  of  sale,  it  must  be  intended  that  he  sent 
it  there  for  sale.  Or  if  one  send  goods  to  an  auction 
room,  it  cannot  be  supposed  that  he  sent  them 
thither  merely  for  safe  custody.  When  the  article 
is  sent  in  such  a  way  and  to  such  a  place,  as  to 

1  Hanna  v.  Steinberger,  6  Blackf.  520.  Phillips  v.  Harris, 
3  J.  J.  Marshall  122.     Caldwell  v.  Arnold,  8  Min.  265. 

^  Dyer  v.  Pearson,  3  Barn.  &  Cress.  38.  Irving  u.  Motley,  1 
Bing.  543.  Barnes  v.  Bartlett,  15  Pick.  71.  Boyson  v.  Coles, 
6  M.  &  Sel.  23.  '3  W.  178. 


96  FOR  WHAT  replevi:n^  will  lie. 

exhibit  an  apparent  purpose  of  sale,  the  principal 
will  be  bound.  In  the  cases  referred  to,  the  person 
and  the  place  both  indicate  the  nature  of  the  busi- 
ness carried  on.  It  would  be  a  fraud  on  the  pur- 
chaser, against  which  he  could  not  guard  himself 
with  any  ordinary  care,  which  the  depositary  was 
enabled  to  commit  by  the  unwise  conduct  of  the 
owner;  it  would,  therefore,  be  but  just  that  he 
should  bear  the  loss." 

In  a  previous  case,  where  A.  being  indebted  to 
B.  had  sold  him  a  chariotee  in  payment,  which  was 
left  in  the  possession  of  A.,  who  gave  to  B.  a 
receipt  for  it  on  storage,  and  afterwards  it  was 
sold  by  A.  to  a  third  person,  without  notice  of  the 
former  sale,  the  same  judge  holds  the  following 
language :  "  Wherever  there  is  a  sale  of  property, 
and  no  actual  possession  delivered,  it  remains  at 
the  risk  of  the  purchaser :  as  between  him  and  the 
vendor  the  property  is  his ;  but  when  it  passes  into 
the  hands  of  a  bona  fide  purchaser,  without  notice, 
it  would  be  against  sound  policy  to  permit  a  re- 
covery. The  maxim  caveat  emptor  does  not  apply. 
I  hold  the  law  to  be  the  same,  whether  the  possessor 
be  the  immediate  purchaser  from  the  original  ven- 
dor, or  from  his  fraudulent  vendee."^ 

^  Shaw  V.  Levy,  It  S.  &  R.  101. 


rOR   WHAT   REPLEVI]^   WILL    LIE.  97 

Of  late  years  a  distinction  in  favor  of  innocent 
purchasers,  founded  upon  the  manner  by  which 
possession  has  been  acquired,  and  the  intention  of 
the  owner  in  parting  witli  his  property,  has,  on 
principles  of  policy  and  justice,  and  for  the  benefit 
of  trade,  been  gaining  ground.  In  this  country, 
it  is  already  well  established  in  'New  Yoi-k  and 
Massachusetts.^  By  the  rule,  as  there  established, 
if  one  obtain  possession  of  personal  property  with 
the  consent  of  the  owner,  and  with  the  intention, 
on  his  part,  to  change  the  property,  no  matter  by 
what  fraudulent  representations  this  assent  may 
have  been  obtained,  the  contract  is  not  absolutely 
void,  but  voidable,  and  a  bona  fide  purchaser  for 
valuable  consideration  will  be  entitled  to  the  pro- 
perty as  against  the  original  owner,  if  his  purchase 
has  been  made  before  the  original  contract  has  been 
avoided.  But  if  he,  at  the  time  of  his  purchase, 
had  knowledofe  of  the  fraudulent  intentions  or  mis- 
representations  by  which  his  vendor  obtained  the  pro- 
perty, the  original  owner  may  recover  it  from  him.^ 

^  Mowrey  v.  Walsh,  8  Cow.  238.  Wheelwright  v.  Depej'ster, 
1  Johns.  471.  BufRiigton  v.  Gerrish,  15  Mass.  156.  Root  v. 
Trench,  13  Wend.  510.  See,  also,  Hollingsworth  v.  Napier,  3 
Caines  182.  Trott  v.  Warner,  9  Fairf.  227.  Cross  v.  Peters,  1 
Greenl.  376. 

'  Williams  v.  Merle,  11  Wend.  80.  Everett  v.  Coffin,  6  Wend. 
609.     Kindar  v.  Shaw,  2  Mass.  398.     Lloyd  v.  Brewster,  i 


98  FOR   WHAT   KEPLEVIX   WILL    LIE. 

As  between  the  parties  when  the  terms  of  the 
agreement  make  a  sale  for  cash,  if  the  purchaser 
after  obtaining  possession  refuses  to  pay,  the  seller 
may  immediately  repossess  himself  by  replevin.^ 

In  Pennsylvania  the  point  has  not  been  explicitly 
ruled,  but  the  course  of  decisions,  and  the  dicta  of 
her  courts,  warrant  the  conclusion  that  she  will 
follow  the  doctrine  of  ^ew  York  and  Massachu- 
setts. Thus,  Judge  Rogers,  in  the  case  of  Mackin- 
ley  V.  M'Gregor,  says :  "  It  would  be  a  dangerous 
doctrine  to  establish,  that  where  a  person  purchases 
commodities,  which,  at  the  time,  he  is  conscious  he 
shall  be  unable  to  pay  for,  though  these  goods  may 
have  afterwards  passed  through  other  hands  in  the 
fair  way  of  purchase,  or  third  persons  may  have 
become,  in  the  regular  course  of  business,  interested 
in  them,  the  original  seller  shall  have  the  right  to 
recover  them,  in  whomsoever's  hands  they  may  be." 
And  again,   "Replevin  or  trover  will  lie  by  the 

Paige  537.  Johnson  v.  Peck,  1  Wood.  &  Min.  336.  Hall  v. 
Gilmore,  40  Maine  578.  Hunter  v.  The  Hudson  River  I.  &  M. 
Co.  20  Barb.  493.  Pringle  v.  Phillips,  5  Sandf.  157.  Rowley 
V.  Bigelow,  13  Wend.  570.  Williams  v.  Given,  6  Grattan  268. 
Robinson  v.  Dauch,  3  Barb.  S.  C.  20.  Tallman  v.  Turk,  26 
Barb.  167. 

^  Harris  v.  Smith,  3  S.  &  R.  20.  Henderson  v.  Lauck,  9 
Harris  359.    Miller  v.  Munhall,  Leg.  Int.,  Sept.  14,  '77,  p  321. 


FOR    WHAT    REPLEVIN    AVILL    LIE.  99 

vendor,  against  the  vendee,  although  not  against  a 
bona  fide  purchaser,  without  notice  of  the  fraud. ^ 

In  England,  the  doctrine  is  unsettled:  In  the 
case  of  Parker  v.  Patrick,^  one  to  whom  goods, 
obtained  from  the  true  owner  by  false  pretences, 
had  been  pawned  for  a  valuable  consideration,  and 
without  notice  of  the  fraud,  was  held  to  be  entitled 
to  them ;  but  Lord  Denman,  in  Peer  v.  Humphrey,^ 
expresses  his  disapprobation  of  that  case,  and  rules 
against  it.  The  goods  in  Peer  v.  Humphrey  were 
feloniously  taken  from  the  real  owner.  Lord  Abin- 
ger  at  Kisi  Prius,  in  the  subsequent  case  of  Shep- 
pard  V.  Shoolbread,^  reasserts  the  doctrine  of  Par- 
ker V.  Patrick,  without  referring,  however,  either 
to  that  case  or  to  Peer  v.  Humphrey.  In  a  sub- 
sequent case.  Load  v.  Green,^  Baron  Parke  says : 
"  The  case  of  Parker  v.  Patrick  has  been  doubted, 

^  Mackinley  v.  M'Gregor,  3  Wh.  396.  Knowles  v.  Lord,  4 
Wh.  506.  Smith  v.  Smith,  9  Harris  369.  Thompson  v.  Lee, 
3  W.  &  S.  4T9.  But  see  M'Mahon  v.  Sloan,  2  Jones  229. 
Hildebnrnu.Natlians,  1  Phila.  567.  See  Pease  v.  Smith,  61  N.  Y. 
477. 

'  5  T.  R.  175. 

■^  2  Adol.  &  Ellis  495,  4  Nev.  &  M.  430. 

*  1  Car.  «fe  Marsh.  61.     See  Noble  v.  Adams,  7  Taunt.  59. 

^  15  Mee.  &  W.  216.  White  v.  Garden,  10  Common  Bench 
919.     And  See  Irving  v.  Motle}^  7  Bingh.  543. 

8 


100  FOR    WHAT    REPLEVIN    WILL    LIE. 

but  I  think  it  may  be  supported  on  the  ground 
that  the  transaction  is  not  absohitely  void,  except 
at  the  option  of  the  seller.  He  may  elect  to  treat  it 
as  a  contract,  and  he  may  do  the  contrary  before 
the  buyer  has  acted  as  if  it  were  such,  and  resold 
the  goods  to  a  third  party." 

It  is  said  in  an  old  case  that  replevin  does  not 
lie  for  money,^  or  for  leather  made  into  shoes. 
This  is  founded  on  the  supposed  impossibility  of 
identification.  Money  in  a  box,  or  leather  made 
into  ^shoes,  if  sufficiently  identified,  may  no  doubt 
now  be  recovered  in  this  action.  When  the  pro- 
perty has  been  so  materially  changed,  a  new  right 
of  action  arises  to  reclaim  it  by  replevin  in  that 
shape  which  it  has  assumed.  And,  in  this  case,  it 
should  be  described  in  the  writ  as  it  existed  at  the 
time  of  the  commencement  of  the  suit.^  Where 
there  was  an  agi-eement  for  the  sale  of  corn,  to  be 
paid  for  on  the  delivery  of  the  last  load,  and  the 
corn,  as  hauled  to  the  buyei''s  mill,  was,  in  the  pre- 
sence of  one  of  the  sellers,  emptied  in  a  heap  with 
other  corn,  and  after  delivery  of  the  last  load  the 
buyer  failed  to  pay,  it  was  held  that  the  mixture 

^  Banks  v.  Whetstone,  Moor.  394.  Sager  u.  Blain,  44  N.  Y. 
445. 

^  Brown  v.  Sax,  1  Cowen  95.  Betts  v.  Lee,  5  Johns.  348. 
Wingate  v.  Smith,  20  Maine  R.  287.     Snyder  u.  Yaux,  2  R.  427. 


FOR    WHAT    llEPLEVIN    WILL    LIE.  101 

did  not  prevent  the  reclamation  of  as  much  of  the 
corn  as  the  vendor  delivered,  and  that  replevin  lay 
for  it.^  And  so  for  oil  of  plaintiff  wrongfully  taken 
from  his  tank  and  mixed  with  oil  of  the  defendant 
in  another  tank.^ 

Replevin  will  lie  for  a  swarm  of  bees,^  and  for 
the  increase  of  animals,  though  the  increase  were 
after  the  taking  f  but  not  for  animals  ferce  naiurce^ 
and  unreclaimed/ 

In  Maryland  it  is  the  proper  remedy  for  the  re- 
covery of  an  apprentice.^ 

It  was  held  in  England  that  replevin  did  not  lie 
for  goods  taken  beyond  the  seas,  though  afterwards 
brought  to  England  by  the  defendant.'  Because, 
it  was  said,  the  taking,  which  was  the  gist  of  the 
action,  was  beyond  the  seas.  In  this  country, 
where  the  unlawful  detention  is  as  much  in  ques- 

^  Henderson  v.  Lauck,  9  Harris  359.  See  Scliulenburg  v, 
Harriraan,  2  Hill.  398  (Minnesota).  Low  u.  Freeman,  12  HI. 
467.  Low  V.  Martin,  18  HI.  286.  Warner  v.  Cushman,  31  111. 
283. 

-  Wilkinson  v.  Stewart,  5  Weekly  Notes,  p.  70.     5  Norris. 

'  F.  N.  B.  68.  '  F.  N.  B.  69.     Sid.  82. 

^  2  Roll.  Ab.  430. 

«  1  Horsej's  Stat,  of  Md.  827.     1  Md.  Code,  Art-  5,  S.^ct.  9. 

'  Nightingale  u.  Adams,  1  Show.  91,  Case  92. 


102  FOU    WHAT    KEPLEVIN   WILL    LIE. 

tion  as  the  taking,  this  ruling  of  Pollexfen  would 
hardly  be  recognized. 

Replevin  will  lie  for  a  ship  and  her  sails  ;^  but 
not  after  a  decree  of  condemnation  as  prize  by  a 
court  of  Admiralty." 

A  case  of  some  interest,  as  involving  the  question 
of  jurisdiction,  has  lately  been  before  the  district 
court  of  the  United  States  for  the  Eastern  District 
of  Pennsylvania.  The  barque  Royal  Saxon  was 
taken  on  a  foreign  attachment  issued  out  of  the 
supreme  court  of  Pennsylvania,  and  under  the 
regular  proceedings  in  the  action  was  sold  by  order 
of  the  court,  on  the  9th  February,  1848,  as  a  charge- 
able commodity,  and  purchased  by  Ward  &;  Co.,  of 
JN'ew  York.  On  the  22d  January,  1848,  after  the 
issuins:  of  the  foreig-n  attachment,  and  before  the 
sale  to  Ward  &  Co.,  the  barque  was  libelled  in  the 
United  States  district  court  for  the  Eastern  Dis- 
trict of  Pennsylvania  by  the  mariners  for  their 
wages,  and  was  sold  under  process  in  that  case 
to  Robert  Taylor,  of  Philadelphia,  and  delivered  to 
him  on  the  15th  February,  1818,  Ward  &  Co.  not 

'  Marsh.  110.     Prideaux  v.  Warne,  Sir  Thomas  Rnym.  232 
^  W.  B.  V.  Latimer,  4  Dall.  Appx.  I.     Certain  Logs  of  Ma 
hogan}^,  2  Summer  589. 


FOR    WHAT    KErLEVIX    AVILL    LIE.  10.3 

intervening  to  oppose  the  proceedings.  On  the 
24tli  Febrnary,  1848,  Ward  &  Co.  issued  a  writ  of 
replevin  from  the  supreme  court  of  Pennsylvania, 
making  Eobert  Taylor  defendant,  and  giving  a 
replevin  bond  to  the  sheriff  in  the  usual  ibrm,  in 
the  sum  of  twelve  thousand  dollars,  no  satisfactory 
claim  property  bond  having  been  tendered,  the 
barque  was  delivered  to  the  plaintifts  on  the  1st 
March,  1848.  On  the  following  day,  Taylor  ex- 
hibited his  libel  in  the  district  court  of  the  United 
States  for  the  property  and  possession  of  the  said 
barque,  upon  which  the  barque  was  taken  into  the 
possession  of  the  marshal,  but  subsequently  de- 
livered to  Ward  &  Co.  on  their  entering  into 
stipulations  in  nine  thousand  dollars  to  abide  the 
decree  of  the  coui*t.  A  plea  to  the  jurisdiction, 
alleging  the  pendency  of  the  replevin  suit  in  the 
State  court,  was  entered  by  Ward  &  Co.,  and  over- 
ruled; after  which  they  put  in  their  answ^er,  setting 
out  the  foregoing  facts  at  length,  and  insisting 
strongly  on  the  pendency  of  the  action  of  replevin- 
in  the  State  court,  in  which  they  had  given  bonds 
in  twelve  thousand  dollars  for  a  return,  if  a  return 
should  be  awarded,  and  that  the  said  court  had 
complete  jurisdiction  thereof. 

The  learned  judge  of  the  district  court  overruled 
all  the  points  made  by  the  respondents,  and  con- 


104  FOR    WHAT    REPLEVIN    WILL    LIE. 

eluded  his  opinion  with  the  following  observations: 
"A  sale  in  the  admiralty  would  lose  much  of  its 
recognized  efficiency  and  value,  if  the  party  whom 
it  evicted  could  at  once  restore  himself  to  posses- 
sion ])y  a  common  law  writ,  and  if  the  admiralty, 
by  force  of  the  same  writ,  were  precluded  from 
reinstating  its  vendee.  Tlie  suitor  in  this  court 
would  have  less  confidence  of  attaining  the  prompt 
and  effective  justice  which  he  seeks,  if  after  a 
decree  rendered  and  even  execnted  here  the  whole 
question  might,  at  the  election  of  his  adversary, 
be  submitted  to  review  in  another  tribunal,  con- 
stituted imder  different  laws,  proceeding  by  dif- 
ferent forms,  and  recognizing  other  responsibilities : 
and  the  constitutional  policy,  which  has  extended 
the  judicial  power  of  the  United  States  to  'all  cases 
of  admiralty  and  maritime  jurisdiction,^  would  be 
frustrated,  if  the  adjudications  of  such  cases  by  the 
courts  of  the  Union  were  not,  in  fact  as  in  form, 
final  and  conclusive.  It  is  therefore  adjudged, 
•ordered,  and  decreed,  that  ]^x)ssession  of  the  said 
barque,  the  Royal  Saxon,  be  delivered  to  the  libel- 
lant,  as  the  true  and  projjer  owner  thereof,  and  that 
the  costs  of  this  proceeding  and  decree  be  paid  by 
the  claimants."  The  claimants  carried  the  cause 
by  appeal  to  the  circuit  court.  The  judgment  was 
reversed  on  the  ground  that  the  State  court  had 


FOR    WHAT    TlErLEVIN    WILL    LIE.  105 

exclusive  jurisdiction   by  virtue   of  the   replevin 
which  preceded  the  proceedings  in  admiralty.^ 

As  a  general  proposition,  title  to  land  cannot  be 
tried  in  an  action  of  replevin,-  nor  can  a  house  built 
on  leased  land  be  taken  in  replevin,  nor  will  the 
writ  justify  the  severance  and  delivery  of  fixtures.^ 
But  if  a  building  is  wrongfully  removed  the  land- 
owner may  recover  its  possession  by  means  of  this 
writ.*  One  out  of  possession  of  land  cannot  try 
his  title  to  it  against  one  in  the  actual  possession 
with  claim  of  title  by  bringing  replevin  or  trover 
against  him  for  timber  cut  or  slates  quarried  upon 
the  premises.^  This  would  not  hold  good  if  the 
timber  cutter  or  quarrier  were  a  trespasser  merely 
without  permanent  possession.  But  one  in  posses- 
sion of  land  with  claim  of  title,  or  having  the  con- 
structive possession  which  the  law  casts  upon  the 
owner  of  the  legal  title  of  wild  or  unseated  land, 

1  1  Wallace,  J.  Rep.  SU. 

'  Eaton  V.  Soutliby,  Willes  131.  Snyder  v.  Yaux,  2  R.  427. 
Yausse  v.  Russel,  2  McCord  329. 

^  Roberts  v.  Dauphin  Bank,  1  Harris  11.  Cresson  o.  Stout, 
17  Johns.  116. 

*  Huebschmann  u.  McHenry,  29  Wis.  655.  Ogden  v.  Stock, 
34  111.  522.     See  Spencer  v.  Darlington,  24  P.  F.  Smith  287. 

5  Brown  i'.  Caldwell,  10  S.  &  R.  114.  Powell  v.  Smith,  2 
Watts  126.  Mather  v.  Trinity  Church,  3.  S.  &  R.  509  Baker 
V.  Howel,  6  S.  &  R.  476.     De  Mott  v.  Hagermann,  8  Cow.  220. 


106  FOR   WHAT    REPLEVIN    WILL    LIE. 

may  maintain  replevin  for  timber  severed  from  it, 
and  carried  away  by  a  trespasser,  and  this  though 
the  timber  has  been  wori:ed  into  posts  and  rails  or 
shingles,  or  what  not,  since  the  severance.^  The 
defendant  cannot  defend  on  his  alleged  better  title 
to  the  land.^ 

In  the  case  of  Elliott  v.  Powell,^  which  was  re- 
plevin for  eighty  dozen  of  wheat  in  the  sheaf,  the 
plaintifl*  proved  that  he  had  cleared  the  ground, 
fenced  it,  and  put  in  the  crop  of  wheat,  and  was 
in  the  possession  of  the  premises,  and  that  the 
defendant  cut  and  carried  away  the  grain.  The 
defendant  offered  to  prove  that  the  land  was  his, 
that  the  plaintiff  in  sowing  the  grain  was  a  tres- 
passer, that  he  (the  defendant)  entered  upon  the 
premises  and  took  the  actual  possession  thereof, 
which  he  had  maintained  ever  since,  and  that  while 
in  possession  he  cut  the  grain.    The  supreme  court, 

'  Snyder  v.  Vaux,  2  R.  427.  Clement  v.  Wright,  4  Wright 
2r)0.  Heaton  v.  Findley,  2  Jones  304.  Brewer  v.  Fleming,  1 
P.  F.  Smith  102.  Corbett  v.  Lewis,  3  P.  F.  Smith  322.  Young 
V.  Herdic,  5  P.  F.  Smith  172.  Hungerford  v.  Bedford,  29  Wis. 
345.  Davis  v.  Easley,  13  111.  l'92.  Anderson  v.  Hapler,  34 
111.  436. 

^  Lehman  v.  Killerman,  15  P.  F.  Smith  4S9. 

'  10  Watts  454. 


FOR    WHAT    PtErLEVIN    WILL    LIE.  107 

Judge  Rogers  delivering  the  opinion,  say:  "We 
are  of  opinion  that  the  evidence  was  admissible, 
because,  if  true,  it  is  a  flat  bar  to  the  action.  It 
would  show  that  the  locus  in  quo  Avas  his  freehold, 
that  by  the  entry  the  possession  of  the  plaintiff 
was  divested,  and  the  defendant  was  reinstated  in 
the  possession  of  the  premises."  Agnew,  C.  J.,  in 
Lehman  v.  Kellerman,  15  P.  F.  Smith  492,  com- 
menting on  this,  says:  the  opinion  evidently  pro- 
ceeds on  the  ground  that  there  was  no  contested 
title,  and  the  defendant  had  an  immediate  right  of 
entry,  which  he  exercised  and  thereby  put  himself 
in  actual  possession  before  the  cutting  of  the  grain. 
If  the  grain  had  been  sown  by  one  in  actual  pos- 
session nnder  claim  of  title,  the  defence  could  not 
have  been  admitted.  "  By  the  entry  of  the  tenant 
of  the  freehold,  he  is  in  possession  and  the  owner 
of  the  grain  raised,  on  the  premises."  "  It  is  a  mis- 
take to  suppose  that  the  title  to  real  estate  may 
not  be  incidentally  tried  in  a  transitory  action." 
If  machinery,  which  is  part  of  the  freehold,  as  it 
is,  whenever  it  is  necessary  to  constitute  the  pre- 
mises what  they  purport  to  be,  is  dissevered  by  the 
former  owner  after  a  sale  by  himself  or  by  the 
sheriff,  the  purchaser  of  the  real  estate  may  main- 
tain replevin  for  the  machinery,  against  the  person 
who  detached  it,  and  this  although  he  can  only 


108  FOR   WHAT    EEPLEVIX    WILL    LIE. 

make  title  to  the  chattel  by  provhig  title  to  the 
land/ 

Tlic  act  of  assembly  of  Pennsylvania,  15th  May, 
1871,  §  1,  pam.  laws  268,  was  designed  to  remove 
any  difficulty  there  might  be  in  this  subject.  It  is 
not  clear  that  it  does  so.     Appendix  III. 

The  statute,  2  Will.  &  Mary,  c.  5,  enacts,  "That 
sheaves  or  cocks  of  corn,  loose  or  in  the  straw,  or 
hay  in  any  barn  or  granary,  or  in  any  hovel,  stack, 
or  lick,  or  otherwise  in  any  part  of  the  land,  may 
be  seized  or  secured  for  rent,  and  detained  until 
the  same  be  replevied."  Since  that  statute,  a 
replevin  has  always  been  allowed  of  such  corn  or 
hay,^  and  subsequently  by  the  statute  11  Geo.  2, 
ch.  19,  sec.  8,  a  distress  being  permitted  on  corn, 
grass,  hops,  roots,  fruits,  pulse,  or  other  produce 
oTowiniT,  thouo;h  such  distress  was  of  thinors  an- 
nexed  to  the  freehold,  and  though  no  words  ex- 
pressly authorize  a  replevin,  yet  it  is  the  constant 
practice  to  try  the  legality  of  such  distress  in  an 
action  of  replevin.^  The  seventh  section  of  the 
Pennsylvania  act  of  21st  March,  1772,  seems  to 

^  Harlan  v.  Harlan,  3  Harris  501.  De  Mott  v.  Hagerraan,  8 
Cow.  220.     Johnson  v.  Elwood,  53  N.  Y.  431. 

^  Wilk.  Uepl.  3,  4.  '  Wilk.  Repl.  3,  4. 


FOR   WHAT    REPLEVIN    WILL    LIE.  101) 

1)0  a  transcript  of  this  last  act,  and  will  probably 
receive  the  same  construction.^  The  same  rule  pre- 
vails in  Indiana. 

It  is  said  in  England  that  replevin  will  not  lie 
for  title  deeds,  as  they  savor  of  the  realty.^  If  a 
title  ])aper,  a  lease  for  instance,  is  delivered  to  the 
plaintiff,  no  transfer  of  the  possession  of  the 
premises  is  effected.  The  writ  of  rei)levin  cannot 
be  made  to  do  the  duty  of  a  liberai-i  facias  posses- 
sionem.'^ 

It  will  lie  for  the  recovery  of  parish  records,^  and 
for  the  books  of  a  corporation. 

1  Helliiigs  V.  Wright,  2  Ilfirris  373.  Matlock  v.  Fiy,  L5  Ind. 
483. 

'  Brooke  Abr.  tit.  Repl.  34. 

^  Clark  V.  Xevili,  1  Phila.  Rep.  28. 

*  Sawyer  v.  Baldwin,  11  Tick.  492.  Southern  Plank  Road 
Co.  V.  Hixon,  5  Ind.  165. 


CHAPTEE    III. 


THE  WRIT  OF  REPLEVIN". 


The  writ  of  replevin,  as  we  have  seen,  was,  in 
England,  a  jiistitial  writ,  commanding  the  sheriff 
to  cause  deliverance  to  be  made  of  the  property. 
There  was  no  summons  to  the  defendant,  and  the 
writ  was  not  returnable.     It  was  in  this  form  : — 

"  The  King  to  the  Sheriff  of  I^ottingham,  health. 
We  command  you  that  justly  and  without  delay 
you  cause  to  be  replevied  to  A.  his  cattle,  which 
he  complains  that  B.  took,  and  unjustly  detains: 
And  after,  cause  him  to  be  brought  to  justice  for 
the  same :  That  we  hear  no  more  complaint  for 
want  of  justice."^ 

If  the  sheriff  neglected  or  refused  to  execute  this 
writ,  an  alias  or  pluries  with  a  clause  of  return 
might  be  issued.^  This  writ  is  no  longer  in  use  in 
England. 

In  the  United  States,  generally,  the  writ  com- 
mands the  sheriff  to  replevy  and  deliver  certain 

^  Reg.  Brev.  81.  '  See  ante,  55  to  59. 


THE    AYllIT    OF    REPLEVIN.  Ill 

articles,  enumerating  them,  the  property  of  the 
plaintiff,  and  to  snmmon  the  defendant/  In  New 
York  it  seems  not  to  be  necessary  to  specify  the 
property  in  the  writ.^  And  in  Tennessee,  by  the 
act  of  15th  January,  1846,  if  there  be  several  de- 
fendants, living  in  separate  counties,  counterparts 
of  the  summons  may,  at  the  instance  of  the  plain- 
tiff, issue  in  each  county.  In  JSTew  York,  Kentucky, 
Missouri,  Arkansas,  Ohio,  Tennessee,  and  Missis- 
sippi, the  revised  statutes  require  an  affidavit  to 
be  filed,  before  the  issuing  of  the  writ,  stating  the 
justness  of  the  claim,  that  the  plaintiff  is  entitled 
to  the  possession,  and  that  the  property  has  been 
wrongfully  taken  or  detained  by  the  defendant.  In 
the  statutes  of  Missouri,  Ohio,  Kentucky,  Maine, 
'New  Hampshire,  Yermont,  and  Massachusetts,  no 
provision  is  made  for  the  course  to  be  pursued,  if 
a  claim  of  property  is  made  by  the  defendant.  In 
Massachusetts  and  Missouri  such  claim  is  entirely 
disregarded.  The  same  practice  is  believed  to 
prevail  in  the  other  States  last  above  enumerated. 
In  Illinois  and  Indiana  the  piocess  must  be  pre- 
ceded by  an  affidavit  setting  forth  clearly  the 
grounds  of  the  plaintiff's  claim,  by  the  revised 
statute  of  Illinois  the  proceeding  is  called  a  plaint.'' 

'  See  Appx.  I.,  Snedeker  v.  Quick,  6  Halst.  179. 
'  Finehout  v.  Grain,  4  Hill  537. 
'  Anderson  v.  Hopler,  34  111.  436. 


112  THE    WEIT    OF    REPLEVIN. 

The  statutes  of  Arkansas  provide  for  an  inquest 
in  such  case,  to  be  summoned  at  the  instance  of 
tlie  defendant,  pending  whose  deliberations  the 
property  remains  in  the  custody  of  the  sheriff. 

In  Pennsylvania  tlie  writ  is  in  personam  as  well 
as  in  rem,  and  does  not  come  under  the  term 
"summons"  in  the  fee  bill  of  1821,  but  under  the 
phrase  "other  writs,"  for  which  the  prothonotary 
is  entitled  to  charge  seventy-five  cents. ^  It  is 
returnable  on  the  first  day  of  the  term.  In  the  city 
and  county  of  Philadelphia,  and  county  of  Alle- 
ghany, the  writ  may  be  made  returnable  to  the  first 
day  of  the  term  next  succeeding  the  time  at  which 
it  is  issued,  or  to  the  first  Monday  of  any  interme- 
diate month  at  the  election  of  the  party  suing  out 
the  same.^  And  it  seems  that  the  jurisdiction  of 
the  district  court  did  not  depend  on  the  amount  of 
the  rent  in  arrear.^ 

It  will  be  fatal  to  the  writ,  if  the  first  day  of  the 
tei-m  come  between  the  test  of  the  writ  and  the  day 
to  which  it  is  made  returnable.  Thus  in  ^N^ew 
York  a  writ  of  replevin  tested  at  one  term,  and 

^  Baldwin  v.  Cash,  7  W.  &  S.  425.  7  Sm.  Laws  367.  Bower 
V.  Tallman,  5  W.  &  S.  561. 

*  Hirst  V.  Moss,  3  Pliila.  457.    Aucora  v.  Burns,  5  Binney  522. 


THE   WRIT    OF    REPLEVIN.  113 

returnable  the  next  term  but  one,  an  enti4-e  term 
intervening,  was  held  voidable.^  In  that  State  the 
revised  statutes  gave  a  clause  of  capias  against  the 
defendant,  in  case  the  goods  could  not  be  found.'^ 
And  the  code  of  procedure  contains  a  similar 
l)i-ovision.^  In  Michigan  an  affidavit  is  required 
to  accompany  the  writ,  stating  that  the  property 
was  not  taken  for  an}'  assessment  levied  by  virtue 
of  any  law  of  that  State.^ 

The  writ  must  be  served  upon  the  defendant  as 
other  writs  are  served,  and  the  goods  delivered  to 
the  plaintiff,  unless  their  delivery  is  prevented  by 
a  claim  of  property,  or  they  cannot  be  found.  A 
symbolical  delivery*  is  not  sufficient  unless  with 
the  consent  of  the  plaintiff.  By  the  statute  West. 
1,  ch.  17,  where  one  had  taken  the  beasts  of  another 
and  driven  them  into  a  castle  or  fortress  to  prevent 
the  owner  from  having  a  replevin,  the  sheriff  was 
authorized,  after  solemn  demand  and  refusal  to 
deliver,  to  break  the  castle  or  fortress  to  make  re- 
plevin.   And  in  Semayne's  case,"^  it  is  said  that  this 

^  Cayward  v.  Doolittle,  6  Cow.  602. 

^  2  Vol.  Revised  Stat.  p.  430,  title  12,  154th  sect.  3d  clause, 
code  of  procedure,  which  took  effect  on  the  first  day  of  May, 
A.D.  1848. 

'  Phenix  V.  Clark,  2  Mich.  327. 

*  Hayes  v.  Lusby,  5  Har.  &  J.  485.  *  5  Coke  91,  a. 


114  THE    WRIT    OF    REPLEVIlSr. 

act  is  but  an  affirmance  of  the  common  law;  for  by 
the  common  law  the  privilege  of  a  man's  house 
extends  only  to  him  and  his  family,  and  to  his  own 
proper  goods,  or  to  those  which  are  lawfully  and 
without  fraud  and  covin  there ;  but  according  to 
Lord  Coke,  the  statute  was  necessary  to  justify 
the  sheriff  in  breaking  an  outer  door  at  the  suit  of 
a  subject.^ 

In  the  'New  York  revised  statutes  there  was  a 
provision  similar  to  the  statute  West.  1,  ch.  17.^ 
It  is  also  to  be  found  in  the  new  code.  There  is 
the  same  provision  in  the  statutes  of  Wisconsin, 
Ohio,  Arkansas,  New  Jersey,  and  Michigan.  The 
seventeenth  chapter  of  the  statute  Westminster 
first,  is  not  reported  by  the  judges  to  be  in  force 
in  Pennsylvania.  There  is  no  similar  enactment 
in  that  State.  In  the  case  of  Kneas  v.  Fitler,  the 
supreme  court  held  that  the  sheriff  had  a  right  to 
enter  the  house  of  the  defendant  in  replevin  to 
search  for  the  goods,  but  expressly  declined  saying 
anything  as  to  his  right  to  break  the  outer  door 
in  case  of  being  refused  admittance.^ 

To  the  clause  of  summons  in  the  writ,  the  sheriff 
returns  either  summoned  or  nihil  habet  as  in  other 

1  2  Inst.  193.  '2  Rev.  Stat.  p.  43),  title  12,  §  10. 

»  2  S.  &  R.  263. 


THE    WIUT    OF    REPLEVIlSr.  115 

cases.  Ill  Eiighiiul,  and  wherever  the  English  law 
is  unchanged  by  statute  or  custom,  if  there  is  a 
claim  of  pi-operty,  the  sheriff  returns  that  fact  to 
the  writ,  and  it  suspends  further  proceedings,  un- 
less the  plaintiff  purchase  the  writ  de  proprietate 
probanda.  If  a  claim  pi'operty  bond  has  been 
given,  he  returns  that  fact.  If  the  goods  or  part 
of  them  have  been  delivered  to  the  plaintiff,  his 
return  will  be  in  accordance,  and  will  enumerate 
the  goods  replevied  and  delivered  to  the  plaintiff;^ 
and  as  to  those  not  delivered,  he  will  return 
eloigned,  or  he  may  return  that  no  person  came  to 
show  him  the  goods.^  And  it  is  a  good  return  to 
say  that  the  cattle  are  dead,'  or  the  goods  destroyed, 
as,  for  instance,  by  fire.  The  sheriff  should  not 
deliver  more  articles  than  are  named  in  the  writ. 
Thus,  a  writ  requiring  him  to  replevy  four  hundred 
tons  of  ore,  will  not  justify  him  in  delivering  seven 
hundred  and  twenty  tons.*  He  cannot  return  that 
the  defendant  did  not  take  the  goods,  for  that  is 
supposed  in  the  writ,  and  may  be  one  of  the  mat- 

'  Bro.  Ret.  Brev.  pi.  100. 

''  Dalt.  Shff.  556.  More  v.  Clypsam,  Aleyn  32.  Burn  v. 
Mattaine,  Cas.  Temp.  Ilardw.  119.  1  Lord  Ray.  613.  Kneas 
V.  Fitler,  2  S.  &  R.  266. 

*  Bro.  Ret.  Brev.  pi.  125. 

*  Dewitt  V.  Morris,  13  Wend.  496.  Gardner  o.  Lane,  9 
Allen  492. 

9 


116  THE    WRIT    OF    REPLEVIN". 

ters  in  controversy,  and  he  can  neither  falsify  the 
writ,  nor  clear  the  defendant  of  the  taking  by  his 
return.^  And  therefore  it  is  said  (in  the  second 
resolntion  in  Moor  v.  Watts),  case  does  not  lie 
against  the  sheriff  for  a  false  return,  if  he  returns 
eloigned ;  and  for  the  same  reason,  the  defendant 
shall  not  be  concluded  by  it,  but  when  he  comes 
and  denies  the  return  by  i^ea  of  non  cepit,  his 
denial  shall  be  as  good  as  the  surmise  of  the  writ, 
and  rather  better,  because  the  proof  is  incumbent 
on  the  plaintiff.^ 

The  above  reason  applies  onlj^  to  the  case  of  a 
defendant.  It  would  seem,  therefore,  that  an 
action  might  be  maintained  by  the  plaintiff  against 
the  sheriff  for  a  false  return,  if  he  should  persist  in 
a  refusal  to  replevy  the  goods,  and  return  eloigned. 

Replevin  is  sometimes  called  a  local  action.*^  In 
some  respects  it  is  so.  It  cannot  be  sustained 
unless  the  defendant  has  had  the  goods  in  the  place 
laid  in  the  declaration,  for  the  place  is  material  and 
traversable.^     But  the  action  is  so  far  transitory 

^  Moor  V.  Watts,  1  Lord  Ray.  613.     Lutw.  581. 
^  1  Lord  Ray.  613. 

^  Gould's  PI.  118.    1  Chitty's  PI.  161.    Atkinson  v.  Holcomb, 
4  Cow.  45.     Williams  v.  Welch,  5  Wend.  290. 
*  1  Saund.  347,  p.  1.     Johnson  v.  Wollyer,  1  Stra.  50T. 


THE    WRIT    OF    REPLEVUS".  117 

that  it  may  be  brought  in  any  county  in  which 
the  defendant  has  had  the  articles  since  the 
taking.^  And  the  safest  course  is  to  lay  tlie  place 
in  the  county  where  the  writ  issues.  In  Massa- 
chusetts it  is  said  that  this  is  necessary.^ 

A  question  may  arise  as  to  the  duty  and  respon- 
sibility of  the  sheriff,  when  he  finds  the  goods  in 
the  possession  of  a  third  party,  not  named  in  the 
writ,  who  has  both  the  property  and  the  possession. 
In  England,  the  law  on  this  subject  is  involved  in 
some  obscurity.  In  one  case  the  sheriff  was  said 
not  to  be  liable  to  an  action  of  trespass,  if  he  took 
the  goods  under  such  circumstances.  And  the 
taking  in  replevin  was  said  by  Holt  not  to  resem- 
ble the  taking  of  one  man's  goods  on  a  fieri  facias 
against  another,  because  in  the  latter  case  the 
officer  is  commanded  to  take  the  goods  of  a  par- 
ticular person — in  the  former  he  is  commanded  to 
take  specific  articles  enumerated  in  the  writ.  He 
said  farther,  that,  if  the  owner  claimed  property  in 
the  goods,  at  the  time  of  taking,  and  the  sheriff, 
notwithstanding,  took  them  away,  without  having 
the  right  of  property  determined,  on  a  writ  de  pro- 

^  Doc.  PL  315.     F.  N.  B.  69.     Wilk.  Repl.  40.     Brown  v. 
Caldwell,  10  S.  &  R.  114.     Elliott  v.  Powell,  10  Watts  454. 
^  Robinson  v.  Mead,  7  Mass.  853. 


118  THE    AYRIT    OF    REPLEVIN". 

l^rietate  probanda,  he  was  liable  to  an  action  of 
trespass.^  It  is  to  be  remarked,  however,  that  the 
case  does  not  seem  to  raise  the  question,  and  there- 
fore Lord  Holt's  observations  have  not  the  weight 
which  would  otherwise  attach  to  them. 

In  Rolle's  Abridgment  it  is  said,  if  the  sheriff, 
on  a  replevin  sued  by  J.  D.,  deliver  the  beasts  of 
a  stranger,  on  the  showing  of  J.  D.,  the  owner  of 
the  beasts  can  have  an  action  of  trespass  against 
him.^  But  from  Keilway's  Reports  it  would  rather 
seem  that,  in  his  opinion,  the  action  in  such  a  case 
should  be  against  the  plaintiff.^  It  is  also  said  in 
Rolle  that  one  who  is  not  party  to  the  replevin 
shall  not  have  the  writ  de  proprietate  probanda, 
and  the  same  thing  is  asserted  in  the  argument  of 
counsel  in  Miller  v.  Davies  et  al.,  Comyn's  Rep. 
596.  Perhaps  the  true  distinction  was,  that  a 
stranger  could  not  maintain  the  action  of  trespass 
when  the  goods  were  found  in  the  possession  of 
the  defendant,  but  when  they  were  found  in  the 
possession  of  the  stranger  he  might ;  for  the  writ 
of  replevin  might  then  be  no  justification  to  the 

1  Hallet  V.  Byrt,  Carth.  381.  Leonard  v.  Stacey,  6  Mod.  68, 
138,  140.     Shipmau  v.  Clark,  4  Denio  446. 

'  2  Roll.  Abr.  552,  §  6,  and  against  the  plaintiff,  2  Roll.  553, 
§  10. 

''  Keilvvay  119,  pi.  64.     lb.  129,  pi.  96. 


THE    WRIT    OF    REPLEVIN".  119 

sheriff,  which  it  was,  if  he  obeyed  it  sti-ictly,  as 
appears  fmrn  the  case  of  Miller  v.  Davies  et  al.,' 
where  it  was  held,  that  the  writ  was  a  justification 
to  the  sheriff  for  taking  the  goods  from  the  pos- 
session of  the  defendant,  without  showing  the  pro- 
perty in  the  goods  to  be  in  the  plaintiff. 

But  Gilbert  says:  "If  the  sheriff  injures  the 
defendant  in  the  execution  of  the  replevin,  by 
taking  some  of  his  cattle,  the  defendant  has  his 
action  of  trespass  against  him,  as  in  all  other  cases 
of  trespass,"^  and  this  most  in  accordance  with  the 
general  principles  of  law. 

The  New  York  revised  statutes  provided  for  this 
case  by  requiring  the  sheriff  to  summon  a  jury  to 
try  the  right  of  property,  whenever  the  defendant 
or  miy  other  person  in  possession  of  the  goods 
specified  in  the  writ  claimed  property  therein. 
The  new  code  of  procedure  has  no  similar  provi- 
sion, but  would  seem  to  confine  the  sheriff's  right 
to  make  deliverance  to  cases  in  which  the  property 
is  in  the  j^ossession  of  the  defendant  or  his  agent ;^ 
an  amendment  to  the  code  has  since  introduced  a 
provision  on  this  sulyject.^     In  Pennsylvania,  the 

'  Comyn's  Rep.  590.  '  Gilb.  Repl.  73. 

^  Code  Proc.  §  184.  *  Appendix  III.  p.  385,  §  216. 


120  THE   WRIT    OF    REPLEVIN. 

wi'it  de  proprietate  probanda  is  not  in  use.  The 
claim  property  bond  is  the  creature  of  practice, 
and  is  taken  in  all  cases,  where  property  is  claimed, 
from  the  party  claiming  the  property,  whether  he 
be  the  defendant  in  the  writ  or  the  person  in  pos- 
session of  the  property,  or  an  entire  stranger.  And 
there  is  no  reason  why  the  bond  should  not  be  good, 
if  given  w^th  a  condition  to  be  responsible  for  the 
value  of  the  goods,  in  case  the  plaintiff*  succeeds  in 
his  suit,  and  to  indemnify  the  sheriff.  Some  such 
arrangement  would  seem  to  be  required,  injustice 
both  to  the  claimant  and  to  the  officer.  If  the  claim 
of  property  is  of  such  grave  importance  as  to  pre- 
vent the  goods  being  taken  from  the  possession  of 
the  defendant,  much  more  would  it  seem  that  such 
claim  should  prevent  the  possession  of  a  third  party 
from  being  violated.  And  though  in  England  the 
writ  as  a  proceeding  in  lem  was  said  to  shield  the 
sheriff',  it  may  be  found  not  to  have  that  effect  here, 
where  it  is  in  personam  as  well  as  in  rem.^ 

If  the  party  in  possession,  not  being  the  defen- 
dant, and  claiming  property,  refuses  or  is  unable  to 
give  a  bond,  the  sheriff*,  under  such  circumstances, 
runs  a  risk  in  executing  the  writ,  for  it  is  by  no 

^  English  V.  Dalbrow,  1  Miles  161.  Morris  v.  Parker,  3 
Mass.  310.     Stimpson  v.  Reynolds,  14  Barb.  506 


THE    WKIT    OF    REPLEVIX.  121 

means  certain  that  the  replevin  l^ond  protects  him. 
It  may  be  said,  that  taking  the  goods  from  the 
possession  of  a  party,  not  nanK^l  in  the  writ,  is  no 
execution  of  the  writ,  but  a  voluntary  act  of  the 
sheriff.  In  such  a  case,  it  was  held  in  Massachu- 
setts that  the  owner  might  maintain  his  possession 
by  force,  in  the  same  manner  that  he  might  against 
any  trespasser  not  an  officer.^ 

The  statute  of  limitations  applies  to  this  action, 
and  consequently  the  writ  must  be  issued  within 
six  years  fi-om  the  unjust  taking  or  detention  ;  and 
in  cases  of  distress  the  action  may  be  brought  at 
any  time  before  actual  sale,  notwithstanding  the 
statute  2  Wm.  &  M.  ch.  5,  or  19th  G.,  2d  ch.,  19 
s.  10,  or  the  act  of  21st  March,  1772.  The  eftect 
of  these  statutes  is  to  stay  the  landlord's  sale  for 
the  five  days.  They  are  not  restrictive  on  the 
tenant.  The  act  of  April  3d,  1779,  §  2,  Purdon, 
page  1266,  is  not  applicable ;  the  bailiff  not  in 
such  case  acting  under  the  authority  of  the  State 
in  the  sense  of  that  statute.^ 

^  Commonwealths. Kennard,  8  Pick  133  State  u.  Jennings, 
14  Ohio  State  R.  73.     King  v.  Orser,  4  Diier  431. 

''  1  Sni.  Laws,  370.  Jacob  v.  King,  1  Marsh.  135.  S.  C,  5 
Taunt.  451.  1st  Eng.  Com.  Law  R.  235.  Brisben  v.  Wilson,  10 
P.  F.  S.  457,  458. 


122  THE    WKIT    OF    REPLEVIN". 

It  has  been  held  in  Kew  York,  that  a  writ  of 
replevin  issued  by  a  defendant,  to  obtain  a  rede- 
liverance  of  property  taken  from  him  by  virtue  of 
a  writ  of  replevin  issued  against  him,  is  irregular, 
and  will  be  superseded  with  costs,  if  the  motion 
be  made  before  the  return  of  the  writ,  or  set  aside 
after  the  return.^  The  contrary  doctrine  is  held  in 
Pennsylvania,  unless  there  has  been  a  judgment  in 
favor  of  the  plaintiff  in  the  first  suit.^  The  former 
action  if  between  the  same  parties  might  be 
pleaded  in  abatement.^  But  if  on  re23levin  against 
A.,  the  goods  of  B.  are  taken,  it  seems  B.  may  re- 
possess himself  by  replevin/ 

1  Morris  i;.  De  Witt,  5  Wend.  11. 

^  LoA-ett  V.  Burkhardt,  8  Wright  174,  But  see  Lowrj  v. 
Hall,  2  W.  &  S.  129. 

^  See  Caldwell  v.  Gans,  1  Montana  Territory  Rep.  5T0. 

*  Clark  V.  Skinner,  20  Johns.  4G5.  See  Revised  Statutes  of 
Michigan,  part  3,  tit.  4,  ch.  5.  Rev.  Stat.  Missouri  1845,  ch. 
921. 


CHAPTER    lY. 

THE   PARTIES    IN^   REPLEVI:N^. 

0 

Generally  every  person  of  full  age,  entitled  to 
the  possession  of  personal  property,  and  not  under 
any  disability,  may  maintain  replevin  therefor. 

Executors  and  administrators  may  have  replevin 
of  o-oods  taken  in  the  lifetime  of  the  testator  or 
intestate/  If  the  goods  of  a  feme  sole  are  taken, 
and  she  afterv^ards  marry,  the  husband  alone  must 
bring  the  replevin,  in  this  case  it  has  been  held 
that  she  could  not  join  f  but  if  she  hold  the  goods 
taken  as  executrix,  then  she  may  join.^  If  timber 
be  cut  on  the  joint  property  of  husband  and  wife, 
the  husband  alone  can  make  replevin  for  it/  These 
decisions  rest  upon  the  ground  that  the  wife  has 

1  Gilb.  Repl.  128.  Bro.  Abr.  tit.  Repl.  pi.  59.  Sid.  80. 
Arundel  v.  Trevyll,  Rast.  Ent.  560.  Act  24th  Feb.  1834,  §  28, 
Pamph.  Laws  70.     M'Knight  n.  Morgan,  2  Barb.  171. 

'Bull.  N.  P.  53.  F.  N.  B.  69.  Bac.  Ab.  tit.  Repl.  G.  Seibert 
V.  M'Henry,  6  Watts  301. 

=*  Bro.  Baron  &  Fern.  pi.  85. 

*  Fairchild  u,  Chaustelleux,  8  Watts  412. 


124  THE    PARTIES    IN    REPLEVIJ^". 

no  interest  whatever  in  the  subject  matter  of  the 
action.  And  the  reason  of  them  fails  in  Pennsyl- 
vania since  the  act  of  the  eleventh  of  April,  1848,^ 
relating  to  the  rights  of  married  women. 

There  is  in  the  act  of  1848  no  appearance  of  an 
intention  to  change  the  rules  of  pleading,  as  applied 
to  the  relation  of  husband  and  wife.  It  would 
seem,  therefore,  the  safest  course,  in  all  actions 
concerning  the  wife's  estate,  to  join  the  husband.^ 
This  course  is  authorized  by  act  of  25th  April, 
1850,  §  39,  Pam.  Law,  576.  The  husband  can 
neither  release  nor  discontinue  the  action.  If  the 
wife  sue  in  her  own  name,  advantage  can  only  be 
taken  of  it  by  plea  in  abatement.^  She  may  so  sue 
if  she  is  a  feme  sole  trader  or  has  been  deserted  by 
her  husband.'^  The  husband  since  the  act  certainly 
cannot  sue  alone. 

Several  persons  cannot  join  in  one  replevin  for 
several  goods  where  the  property  is  several.'^ 

^  Pamph.  Laws,  184S,  p.  536.  See  Musser  v.  Gardner,  16  P. 
F.  Smith  242. 

^  Perry  v.  Boileau,  10  S.  &  R.  208.  Jameson's  Exs.  v.  Brady 
and  Wife,  6  S.  &  R.  466.  Cro.  Car.  69.  Hatchett  v.  Baddeley, 
2  W.  Black.  R.  1079.     Co.  Lit.  112,  a. 

'  Musser  v.  Gardener,  16  P.  F.  S.  246.  Black  v.  Tricker, 
9  P.  F.  S.  13. 

*  Wilk.  Repl.  4.  Co.  Lit.  145.  Hart  v.  Fitzgerald,  2  Mass. 
Rep.  509. 


THE    PARTIES    IN    KEPLEVIN.  125 

If  a  part  owner  sues  for  his  part  merely,  the 
court  will  ex  officio  abate  the  writ.^  If  he  sues  for 
the  whole,  a  plea  of  property  in  plaintiff  and  another 
is  good  in  abatement,  or  in  bar.'^ 

All  the  joint  owners  of  a  chattel  must  join.^ 

A  tenant  in  common,  or  joint  tenant,  or  partner, 
cannot  maintain  replevin  against  his  co-tenant^  or 
co-partner  for  taking  the  common  property. 

A  mere  servant  who,  as  such,  has  charge  of 
goods  cannot  maintain  replevin.^  Where  one  was 
employed  to  cut  timber  into  logs  and  to  deliver  it 
on  land  of  a  third  party  on  the  bank  of  a  creek,  and 
was  to  have  a  lien  on  the  logs  until  his  wages  were 

1  De  Wolf  V.  Harris,  4  Mason  539.  Hunt  v.  Fitzgerald,  2 
Mass.  509. 

^  Wright  V.  Bennett,  3  Barbour  455.  Kindy  v.  Green,  32 
Mich.  310.     Wilson  u.  Gray,  8  Watts  36. 

^  2  Saund.  116,  n.  2.  Decker  v.  Livingston,  15  Johns.  419. 
Bank  v.  Stubbs,  6  Mass.  422.  9  Mass.  427.  D'Wolf  v.  Harris, 
4  Mason  515.  M'Arthurs  u.  Lane,  3  Sliep.  245.  Low  u.  Martin, 
18  111.  286. 

*  Barnes  v.  Bullett,  15  Pick.  71.  Wills  v.  Noyes,  12  Pick. 
324.  Reeves  u.  Morris,  2  Jebb  &  Symes,  344.  Co.  Lit.  199  b. 
Whitesides  i'.  Collier,  7  Dana  283.  Mills  u.  Malott,  43  Lid.  248. 
Reece  v.  Hoyt,  4  Ind.  169.  Wilson  u.  Gray,  8  Watts  36. 
Rogers  v.  Arnold,  12  Wend.  30. 

"  Harris  v.  Smith,  3  S.  &  R.  20. 


126  THE    PARTIES    IN    REPLEVII^. 

paid;  it  was  held  that  he  might  maintain  replevin 
for  the  logs,  his  wages  being  unpaid,  from  one  who 
purchased  from  his  employer  his  logs  described  as 
"  now  being  cut,"  although  placed  on  the  bank  of 
the  stream,  and  the  purchaser  had  not  actual  notice 
of  the  lien.^ 

A  father  is  the  natural  guardian  of  his  children, 
and  when  they  have  no  other  guardian  may  main- 
tain replevin  for  their  personal  property.^ 

In  general,  any  one  in  possession  of  the  goods  or 
having  conti-ol  of  them  may  be  made  defendant.'^ 
If  goods  are  taken  by  A.  at  the  command  of  B., 
the  replevin  may  be  against  both  or  either/  Re- 
plevin will  not  lie  against  any  sheriff,  naval  officer, 
lieutenant  of  the  city  of  Philadelphia,  or  of  any 
county  constable,  collector  of  the  public  taxes,  or 
other  oflacer,  for  goods  taken  or  detained  by  them, 
acting  in  their  several  offices  under  the  authority 
of  the  State.'     The  act  of  1779  makes  it  the  duty 

1  Swift  et  al.  v.  Morrison  (Sup.  Court),  2  Weekly  Notes,  p. 
699. 

^  Smith  V.  Williamson,  1  Har.  &  Johns.  147. 

3  Hall  V.  White,  106  Mass.  599,  600.  Richardson  v.  Reed,  4 
Gray  441,  444. 

*  Gilb.  Repl.  162. 

»  Act  of  3d  April,  1179,  1  Sm.  Laws  470,  Purdon  1266. 
Pott  V.  Olwuue,  7  Watts  173.     Shaw  v.  Levy,  17  S.  &  R.  99 


THE    PARTIES    IJ^    KEPLEVIN.  127 

of  the  court  on  motion  to  quash  the  wi'it ;  not  so  in 
Massachusetts.^  Replevin  Hes,  however,  after  sale, 
against  the  vendee  of  the  sherilf  or  other  officer.' 
But  the  action  cannot  be  maintained  against  the 
marshal  for  goods  held  by  him  under  a  writ  from  a 
federal  court.^ 

>  Ilsey  V.  Stubbs,  5  Mass.  280.     See  Appx.  Mass.  Stat. 

^  Shearick  u.  Huber,  6  Binn.  2.  Lamb  v.  Johnson,  10  C ash- 
ing 126. 

^  Freeman  v.  Howe,  24  Howard  450.  Buck  v.  Colbuth,  3 
Wallace  335.     Booth  v.  Ableman,  18  Wis.  495, 


CHAPTER    Y. 


OP    THE    DECLARATION. 


The  defendant  having  appeared,  the  plaintiff 
must  file  his  declaration,  subject  as  to  time,  &c., 
to  the  same  rules  of  court  which  govern  other 
actions.  If  the  goods  were  taken  as  a  distress,  the 
place,  in  that  case,  being  material  and  traversable,^ 
and  a  new  assignment  not  being  allowed  in  reple- 
vin,^ the  plaintiff*  must  state  the  place  of  taking 
within  the  town  or  county,  accurately  in  his  decla- 
ration. If  the  goods  were  taken  in  a  dwelling- 
house  in  the  city,  he  should  state  the  street  and 
number  of  the  house ;  if  in  a  store  or  factory,  it 
should  be  so  stated,  and  the  locality  given ;  if  on 
a  farm,  that  statement  should  be  accompanied  by 
some  words  of  description  by  which  the  place  may 
be  readily  identified,  such  as  the  road  upon  which 

'  Gilb.  Repl.  124.  Ward  v.  Laville,  Cro.  Eliz.  896.  Hill  v. 
Bunniug,  1  Sid.  20.  Ward  v.  Lakin,  Moore  678.  1  Saund.  Rep. 
347,  n.  1.  2  Sauud.  PI.  &  Ev.  761.  Gardiner  v.  Humphrey,  10 
Johns.  53.     Jackson  v.  Rogers,  11  Johns.  33. 

^  Potter  V.  North,  1  Saund.  Rep.  347.  Cockley  v.  Pagrave, 
Freeman  238.     Revised  Statutes  X.  York,  ch.  xii.  §  3  &  7. 


OF    THE    DECLARATION".  129 

it  is  situate,  and  its  name,  if  it  has  one.^  When 
the  action  is  not  for  goods  distrained,  but  is  founded 
on  a  claim  of  property,  it  will  he  suflfieient  to  lay 
the  taking  in  the  county,  as  in  this  case  the  place 
is  no  longer  material.'^  The  venue  may  be  laid 
wherever  the  goods  are,  as  they  may  be  considered 
to  have  been  taken  at  any  place  into  which  the 
defendant  may  at  any  time  have  carried  them;^ 
The  declaration  must  allege  the  chattels  to  be  the 
property  of  the  plaintiff/ 

By  the  statutes  of  Wisconsin,  where  the  action 
is  for  goods  distrained  for  any  cause,  it  shall  be 
laid  in  the  county  in  which  the  distress  was  made : 
in  other  cases  the  action  shall  be  laid  and  tried  in 
like  manner  as  actions  of  trespass  for  injuries  to 
personal  property.^ 

In  Tennessee,  if  the  goods  cannot  be  found,  the 
defendant  may  declare  in  trover  or  detinue  without 
issuing  a  new  writ.*'      This  would  seem  to  be  a 

'  Potten  V.  Bradley,  2  Moo.  &  P.  78.  See  Kenny  v.  Simpson, 
Jebb  &  Bourke  IT. 

"  Muck  u.  Folkrod,  1  BroTvne  60. 

'  Walton  V.  Kersop,  2  Wils.  354.     Anon.  2  Mod.  199. 
.     *  Pattison  v.  Adams,  1  Hill  126.     Hill  u.  Denio,  V  Hill  426. 

*  Statutes  of  Wisconsin  271. 

«  Act  15th  January,  1846. 


130  OF    THE    DECLARATION". 

substitute  for  the  declaration  in  the  detinet  in  use 
elsewhere.     The  same  law  prevails  in  Illinois.^ 

The  declaration  in  Hoskins  v.  Robins  and  others, 
2  Saunders  320,  contains  an  averment  of  the  price 
or  value  of  each  article  taken,  on  which  Mr.  Wil- 
liams, the  annotator,  remarks:  "It  is  not  usual  to 
insert  the  price  of  the  cattle  or  goods  taken,  in  a 
declaration  in  replevin,  and  the  reason  seems  to 
be,  because  if  the  plaintiff  obtains  a  verdict,  he  is 
only  entitled  to  damages  for  the  vrrongful  taking 
and  costs,  but  not  to  the  value  of  the  goods  taken, 
as  he  is  in  trespass,  for  they  were  delivered  to  him 
vv^hen  replevied."  This  is  manifestly  an  insufficient 
reason  even  in  England,  where  we  have  seen  the 
case  may  go  on,  and  a  recovery  be  had  in  damages 
for  the  value  of  the  property,  if  the  sheriff  is  pre- 
vented from  delivering  it.^ 

The  practice,  as  stated  by  Mr.  Williams,  would 
no  doubt  be  sustained,  whei-e  the  goods  have  been 
delivered  to  the  plaintiff  Where  this  is  not  the 
case,  the  value  must  be  stated.  In  the  United 
States,  indeed,  in  all  the  modern  British  precedents, 
the  value  is  inserted,  not  of  each  individual  article, 

1  Dart  V.  Howe,  20  111.  212.  '  Ante,  p.  60. 


OF    THE    DECLARATION.  131 

but  in  the  aggregate,  as  in  the  forms  in  the  a])- 
pendix.^ 

The  declaration  should  contain  a  description  and 
enumeration  of  all  the  articles  taken,  or  intended 
to  be  replevied.^  The  strictness  of  the  old  rule  on 
this  subject  is  now  somewhat  modified,  and  it  is 
held  that  certainty  to  a  general  intent  is  sufficient, 
particularly  after  verdict.''  Thus,  in  a  case  in 
which  the  declaration,  among  other  things,  Avas  for 
a  lot  of  sundi-ies,  the  defendant  pleaded  propert^^; 
and  when  the  sheriff  came  to  replevy  the  lot  of 
sundi-ies,  gave  a  propert}^  bond  for  them,  and 
retained  possession.  The  defendant  assigned  for 
error  that  this  description  in  the  declaration  was 
too  general — Judge  Rogers  says  :  "  The  declara- 
tion, in  this  case,  would  undoubtedly  have  been  ill 
upon  demurrer;  but  then  upon  the  error  being 
pointed  out,  the  court,  under  our  act  of  assembly, 
would  have  given  leave  to  amend."  "How  can 
the  defendant  now  say  that  he  does  not  know  what 

'  Root  V.  Woodruff,  6  Hill  418. 

*  Pope  V.  Tillman,  1  Moore  386.  T  Taunt.  642.  More  v. 
Clypsam,  Aleyn  33.  Snedeker  v.  Quick,  6  Halst.  179.  Sander- 
son u.  Marks,  1  Har.  &  Gill.  252. 

^  Warner  v.  Aughenbaugli,  15  S.  &  R.  1.  Wilson  v.  Grey,  8 
Watts  38.  Taylor  v.  Wells,  2  Saund.  74,  n.  1.  Minchrod  u. 
Windoes,  29  Ind.  288. 

10 


132  OF    THE    DECLARATION. 

the  plaintiff  meant  by  a  lot  of  sundries,  after  he 
has  claimed  property  in  them,  to  the  sheriff,  and  on 
the  records  of  the  court,  and  after  he  has  retained, 
and  has  now,  the  possession  of  the  very  articles 
for  which  this  suit  is  brought?  But  it  is  said,  the 
description  must  be  so  certain,  that  the  sheriff  can 
tell  how  to  make  deliverance  of  the  property.  This, 
however,  will  not  avail  the  defendant ;  for  the 
sheriff  is  not  bound  to  redeliver,  unless  the  goods 
be  shown  to  him  by  the  party ;  and  in  case  of  a 
defendant,  it  has  been  ruled  to  be  a  good  return  to 
say,  !Rullus  venit  exparte  defendentis  ad  osten- 
dendum  bona  et  catalla."^  And  if  the  defendant 
avows  the  taking,  in  the  place  named,  it  cures  the 
defect  in  the  declaration.^ 

If  standing  corn  is  replevied,  it  should  be  de- 
scribed as  follows  :  "  In  a  certain  field  there,  called 

,  took  the  corn  of  the  said  plaintiff,  to  wit, 

acres  of  standing  corn  then  and  there  grow- 
ing, and  being  of  great  value,  to  wit,  of  the  value, 
ifec."'*  It  has  been  held  m  Missouri  that  replevin 
for  a  certain  number  of  bushels  of  corn  when  the 
crop  is  standing  ungathered  in  the  field  cannot  be 

^  "Warren  v.  Anghenbaugh,  15  S.  &  R.  11.      Kerapster  v. 
Nelson,  2  Wheat.  Sel.  913.     2  Saund.  U,  a,  note  1. 
''  Banks  v.  Angell,  3  Nev.  &  P.  94. 
*  2  CUitty  PI.  844.     See  Appendix,  general  forms  of  narr. 


OF  THE  declaratio:n".  133 

sustained.^  If  fixtures  be  taken,  they  are  well 
described,  according  to  Chitty,^  as  goods,  chattels, 
and  efiects.  When  it  can  be  conveniently  done,  the 
better  way  is  to  name  the  article. 

The  declaration  in  England,  and  wherever  the 
law  is  not  changed  by  statute,  charges  the  defen- 
dant with  having  taken  the  goods  of  the  plaintiff, 
and  unjustly  detained  them  against  sureties  and 
j^ledges.^  If  the  goods  have  been  taken  in  two  or 
more  places,  it  ought  to  appear  what  number  have 
been  taken  in  each;^  property  not  mentioned  in  the 
writ  should  not  be  included,'  and  the  damages 
claimed  should  be  stated,**  and  when  the  gist  of  the 
action  is  the  unlawful  detention,  it  is  not  necessary 
that  a  demand  and  refusal  before  bringing  the 
action  should  be  alleged/  Leave  to  amend  will 
be  given  as  in  other  cases.^ 

^  Jones  V.  Dodge,  61  Mo.  368. 

^  2  Chitty  PL  844.  Pitt  v.  Shew,  4  B.  &  A.  206.  Niblet  v. 
Smith,  4  T.  R.  504. 

3  Evans  v,  Brander,  2  H.  Black.  541.  Childs  v.  Hart,  1  Barb. 
370.  Bond  V.  Mitchell,  3  Barb.  304.  Schofield  v.  White  Legge, 
49  N.  r.  259.     Simon  v.  Lyons,  55  N.  Y.  611. 

*  Littleton's  Rep.  37. 

^  Sanderson  v.  Marks,  1  Harris  &  Gill  252. 

«  Faget  V.  Brayton,  2  Har.  &  J.  350. 

'  Seaver  v.  Dinglej^,  4  Greenleaf  306. 

^  Garner  v.  Anderson,  1  Str.  11.  Warner  v.  Aughenbangh, 
15  S.  &  R.  10. 


134  OF    THE    DECLARATION^. 

Declarations  in  replevin  are  either  in  the  detinuit, 
or  in  the  detinet,  or  both  forms  may  he  joined. 
Where  the  goods  have  been  delivered  to  the  plain- 
tiffin  the  replevin,  the  declaration  is  in  the  detinuit; 
where  the  goods  are  eloigned,  or  for  any  other  cause 
are  not  delivered  by  the  sheriff  to  the  plaintiff,  it  is 
in  detinet,  and  complains  that  the  defendant  took 
the  chattels  and  detains  them ;  where  part  of  the 
goods  are  delivered,  and  part  not,  the  two  forms 
are  combined.^  Where  there  are  separate  writs  in 
the  cepit,  and  in  the  detinet,  as  is  the  case  in  Wis- 
consin, and  was  formerly  the  case  in  'New  York, 
the  declaration  must  conform  to  the  writ.^ 

Sometimes  when  the  plaintiff  in  replevin  is  a 
tenant  who  has  not  paid  his  rent,  and  whose  prin- 
cipal object  in  bringing  the  action  is  to  gain  time, 
he  strives  to  embarrass  the  landlord  by  taking  no 

'  Com.  Dig.  tit.  Pleader,  3  K.  10.  "  If  the  cattle  taken  are 
returned,  the  declaration  shall  say,  quare  cepit,  &c.,  et  ea 
detinuit  contra  vadios  et  plegios  quousque,  &c. ;  if  they  are  not 
returned,  it  shall  be  quare  cepit,  &c.,  et  adhuc  detinet  contra 
vad.  et  pleg.,  omitting  quousque,  &c.  So  if  only  part  arei 
returned,  it  shall  say,  as  to  that  detinuit  quousque,  and  for  the 
residue,  adhuc  detinet."     See  Appendix. 

^  Nichols  V.  Nichols,  10  Wend.  629;  16  Barb.  309;  6  New 
Y.  102;  24  Wend.  179;  1  Bard  371;  7  Hill  126;  Revised 
Statutes,  title  xii.  §  6. 


OF    THE    DECLARATION.  135 

further  steps  in  his  cause,  and  paying  no  regard  to 
the  defendant's  rule  on  him  to  declare;  the  proper 
course  in  such  case  is  to  take  judgment  by  default 
for  want  of  a  declaration;  but  as  the  defendant  in 
such  a  case  is  in  fact  the  actor  or  plaintiff,  being 
the  party  who  is  seeking  to  recover  money,  he 
will  of  course  not  be  satisfied  with  a  judgment  by 
default.  His  most  expeditious  course  is  to  file  a 
suggestion  in  the  nature  of  an  avowry  by  which 
he  will  inform  the  court  that  he  distrained  the 
goods  in  question  for  rent  due,  and  in  arrear  from 
the  plaintiff  to  the  defendant  for  certain  premises, 
describing  them,  stating,  the  rent,  and  how  much 
was  due  at  the  time  of  the  distress,  that  it  still 
remains  due  and  for  it  the  distress  was  made,  and 
pray  the  court  for  a  writ  of  inquiry  of  damages. 
This  is  of  course  given,  and  then  having  ascertained 
the  amount  to  which  the  judgment  entitles  him, 
the  defendant  may  either  have  an  execution  at  once 
against  the  plaintiff,  or  may  take  an  assignment  of 
the  bond  from  the  sheriff  and  sue  on  it.^ 

'  See  Appendix. 


CHAPTEE  YI. 

or    THE    PLEAS    IN    REPLEVIX. 

The  action  of  replevin  is  in  some  respects  ano- 
malous. In  certain  positions  of  the  pleadings  the 
plaintiff  and  defendant  change  places;  and  the 
rules  which,  in  other  actions,  govern  the  plaintiff, 
here  control  the  defendant,  and  vice  versa.  There 
is  nothing,  however,  in  this,  which  exempts  the 
parties  from  an  observance  of  the  common  rules, 
or  excuses  the  absence  of  proper  pleadings  in  re- 
plevin. It  was  formerly  held  in  the  supreme  court 
of  Pennsylvania,  that  even  after  a  trial  on  the 
merits,  the  w^ant  of  a  plea  was  fatal,  and  it  was 
said  that  nothing  would  cure  its  absence.^  This 
is  no  longer  the  law,  and  it  is  now  held,  that  an 
omission  to  compel  the  opposite  party  to  perfect 
the  pleadings  beforehand,  ought  to  be  considered, 
what  it  is  in  justice  and  truth,  a  tacit  agreement 
to  w^aive  matters  of  form,  and  try  the  cause  on  its 
merits ;  just  as  going  to  trial  on  a  short  plea  is  a 

'  Lecky  u.  McDermot,  5  S   &  R  331. 


or    THE   PLEAS    IN    REPLEVIN^.  137 

waiver  of  the  right  to  demand  a  plea  in  full  form/ 
So  also  informalities  in  an  avowry  are  cured  by 
going  to  trial.^  But  where  an  objection  is  made, 
there  is  no  room  for  presumption  of  any  kind,  and 
it  would  be  against  right  and  justice  to  infer  an 
agreement  to  waive  form,  in  opposition  to  the 
protestation  of  the  party  against  the  trial. '^ 

The  writ  in  Pennsylvania  and  Maryland  does 
not  abate  by  the  death  either  of  plaintiff^  or  defend- 
ant.^ In  I*^ew  York,  prior  to  the  new  code,  the 
suit  abated  by  the  death  of  the  plaintiff,  and  in 
such  case  the  defendant  had  no  remedy  on  the  bond, 
bnt  he  might  retake  the  goods.^  In  Massachusetts 
the  action  does  not  survive  the  death  of  the  de- 
fendant.^ 

There  is  a  difference  betw^een  pleas  in  abatement 
in.replevin,  and  in  other  actions.     In  other  actions 

^  Thomson  v.  Cross,  16  S.  &  R.  350.  Sauerman  v.  Weck- 
erley,  U  S.  &  R.  116.     Baxter  v.  Graham,  5  Watts  418. 

•^  Kessler  v.  M'Couach}',  1  Rawle  435. 

'  Bratton  v.  Mitchell,  5  Watts  10. 

*  Act  13th  April,  1791.  Reist  i?.  Heilbreuner,  11  S.  &  R. 
131.     1  Dorsey's  Laws  Md.  463,  Act  1801,  ch.  74,  §  38. 

'  Keite  t;.  Boyd,  16  S.  &  R.  300. 

«  Barkle  v.  Luce,  6  Hill  558.  See  Weber's  Exs.  v.  Underhill, 
19  Wend.  44t. 

'  Petts  0.  Hale,  3  Mass.  321.    Mellan  v.  Baldwin,  4  Mass.  480. 


138  OF    THE   PLEAS   IN    REPLEVi:^. 

pleas  in  abatement  go  merely  to  the  form  of  the 
writ ;  but  in  replevin,  as  the  property  is,  in  the 
first  instance,  delivered  to  the  plaintiif,  it  is  not 
enough  for  a  plea  in  abatement  to  show  that  the 
writ  was  improperly  issued  and  should  be  quashed: 
this  will  not  put  the  defendant  in  statu  quo.  The 
plea  in  abatement  must  go  further,  and  show  the 
defendant  to  be  entitled  to  a  retui-n  of  the  property.^ 

Chief  Baron  Gilbert  says,  in  replevin  "  pleas  in 
abatement  differ  from  pleas  in  bar  only  in  this; 
that  in  abatement  they  do  not  avow  or  acknow- 
ledge the  caption  and  detention,  which  is  the  gist 
of  the  action ;  but  they  must  go  so  far  as  to  entitle 
the  defendant  to  a  delivery,  or  else  they  do  not 
take  away  the  force  and  effect  of  the  writ  of  reple- 
vin, which  is  always  executed  by  the  delivery."^ 
The  well-known  rule,  that  a  defence  which  denies 
that  the  plaintiff  has  any  cause  of  action  at  aity 
time,  must  be  pleaded  in  bar,  while  matter  which 
merely  defeats  the  present  proceeding  must  be 
pleaded  in  abatement,  it  would  seem  from  many 
authorities,  both  ancient  and  modern,  does  not  in 
all  instances,  extend  to  the  action  of  replevin. 
Thus,  it  is  held  that  property  either  in  the  defend- 

'  Gilb.Repl.  126. 

2  Gilb.Repl.  126,  127. 


OF    THR    PLEAS    IN    REPLEVIN".  139 

ant  or  in  a  stranger,  may  be  pleaded  either  in  bar 
or  in  abatement,  and  without  conusance.^ 

The  only  reason  I  have  met  with  for  this  distinc- 
tion, is  o^iven  in  the  old  edition  of  Gilbert  on 
Replevin  (but  omitted  in  the  later  ones),  where 
he  says,  "The  defendant  may  plead  property  in 
himself  in  abatement;  for  by  such  plea  he  doth  not 
deny  or  confess,  and  avoid  the  caption,  and  there- 
fore it  is  not  a  bar;  but  only  shows  that  the  plaintiff 
hath  not  a  right  to  a  deliverance;  and  by  showing 
that  the  goods  ought  to  be  returned  to  the  defend- 
ant on  such  abatement,  as  they  were  before  the  writ 
was  taken  out."^  However  satisfactory  this  might 
have  been  in  England,  it  cannot  be  received  as  a 
sufficient  reason  here,  where  eveiy  unlawful  deten- 
tion is  held  to  be  a  caption,  and  of  course  is  denied 
by  the  plea  of  property.^  Besides  the  plea  of  pro- 
perty wants  another  characteristic  of  a  plea  in 
abatement,  as  it  gives  no  better  writ  to  the  plain- 
tiff.    Authority,  however,  seems  to  have   settled 

1  1  Chitty  Plead.  481.  2  Lev.  92.  Presgrave  v.  Saunders, 
1  Salk.  5.  Butcher  v.  Porter,  1  Salk.  94.  Harrison  v.  M'ln- 
tosh,  1  Johns.  380.  Wilson  v.  Gray,  8  Watts  35.  Rogers  v. 
Arnold,  12  Wend.  30.     De  Wolf  u.  Harris,  4  Mass.  515. 

'  Gilb.  Repl.  128. 

"  Mackinley  v.  M'Gregor,  8  Whart.  369. 


140  OF    THE   PLEAS    IN^   REPLEVIN". 

that  property  is  a  good  defence  either  in  bar  or  in 
abatement. 

If  the  plea  is  propert}^  in  the  plaintiff  and  J.  S., 
then  the  plea  is  in  abatement  of  the  replevin,  as  it 
is  in  other  actions ;  for  though  it  admits  a  right  of 
deliverance  in  the  plaintiff,  yet  it  does  not  allow  it 
by  a  writ  under  the  present  form ;  but  gives  a 
better  writ  to  be  brought  by  the  plaintiff  and  J.  S. 
But  here  the  defendant  ought  to  make  a  conusance ; 
because,  this  plea  not  disaffirming  the  property,  it 
leaves  a  right  in  the  i^laintiff  to  have  his  beasts, 
unless  such  conusance  be  made.^  Cepit  in  alio 
loco  with  conusance  is  a  good  plea  in  abatement. 
Thus,  if  one  declare  of  a  caption  in  Blackacre,  and 
the  defendant  pleads  in  abatement  that  he  took 
them  in  Whiteacre  absq.  hoc  that  he  took  them  in 
Blackacre,  this  will  abate  the  count  under  that 
form.  But  then  he  must  make  conusance;  because, 
not  disaffirming  the  plaintiff's  title  to  the  chattels, 
he  leaves  the  plaintiff  a  right  to  retain.  In  this 
and  every  other  case  in  abatement,  where  the  pro- 
perty is  not  disaffii-med  to  be  in  the  plaintiff,  the 
defendant  must  make  avowry  or  conusance  of  a 
just  cause  of  return ;  for  otherwise  he  does  not 
destroy  the  force  and  effect  of  the  writ,  by  which 

'  Gilb.  Repl.  128. 


or  THE  PLEAS  IN  REPLEVIN.       141 

the  deliverance  was  made,  but  leaves  tlie  plaintitt' 
a  right  to  retain  his  own  property.^  The  avowry 
or  conusance  cannot  be  denied,  but  only  the  plea ; 
for  to  traverse  the  conusance  would  be  a  discon- 
tinuance.^ 

Property  in  defendant  or  a  stranger,  and  cepit 
in  alio  loco,  also  property  in  plaintiff  and  defendant, 
may  be  pleaded  in  bar  as  well  as  abatement.^  In 
Presgrave  v.  Saunders,^  Holt,  Chief  Justice,  said, 
he  remembered  to  have  heard  Hale  make  the  dif- 
ference, that  if  property  be  pleaded  in  defendant, 
it  may  be  either  pleaded  in  bar  or  in  abatement ;  if 
in  a  stranger,  only  in  abatement :  but  that,  upon 
o leat  deliberation,  it  had  been  held  since,  that  there 
was  no  difference  at  all ;  for  both  might  be  pleaded 
in  bar,  according  to  2  Cro.  519.  It  must  be  pleaded 
with  a  special  traverse.^  Cepit  in  alio  loco  is  not  a 
good  plea,  if  the  defendant  or  his  bailiff  has  ever 
had  the  property  in  the  place  mentioned  in  the 
declaration,  though  it  be  merely  on  their  way  to 

^  Gilb.  Repl.  128,  9.     Cross  v.  Bilson,  6  Mod.  102,  n. 

'  Cross  0.  Bilson,  6  Mod.  102.     1  Wms.  Sannd.  347,  n.  1. 

'  Wilk.  Repl.  47,  50.     Wilson  v.  Gray,  8  Watts  25. 

*  6  Mod.  81. 

^  Chambers  v.  Hunt,  N.  J.,  3  Harrison  339.  Rogers  v.  Ar- 
nold, 12  Wend.  30.  Anderson  v.  Tallcott,  1  Gilman  365.  Anstice 
V.  Holmes,  3  Den.  244. 


142  OF    THE    PLEAS    I:N^    KEPLEVIK. 

the  pound.  And  if  he  had  them  there,  but  took 
them  damaged  feasant  in  another  place,  he  should 
plead  that  specially.^ 

Properly  speaking,  there  is  no  general  issue  in 
replevin.^  The  general  issue  is  so  called  because 
the  issue  that  it  tenders  involves  the  whole  de- 
claration, or  the  principal  part  of  it.^  The  declara- 
tion in  replevin,  as  we  have  seen,  alleges  that  the 
defendant  "took  certain  cattle  or  goods  of  the 
plaintiff,  in  a  certain  place  called,  &c.,  and  unjustly 
detained  or  detains  them,"  as  the  case  may  be. 
There  is  no  plea  known  in  this  action  which  alone 
puts  in  issue  the  whole  of  the  above  allegations. 
In  the  old  books  non  cepit  is  called  the  general 
issue  in  replevin/  This  plea  merely  states  that 
the  defendant  "did  not  take  the  said  cattle  or 
goods  in  manner  and  form  as  alleged,"  not  travers- 
ing the  material  allegation  of  the  property  being  in 
the  plaintiif.  By  the  revised  statutes  of  New  York 
taking  in  the  place  named  is  put  in  issue  by  the 
plea  of  non  cepit.^ 

^  1  Wms.  Saund.  34T,  n.  1.  Abercrorabie  v.  Parkhurst,  2  B. 
&  P.  480.  Maltravers  v.  Fosset,  3  Wils.  295.  Walton  v.  Ker- 
sop,  2  Wils.  354.     Chitty  PI.  1046. 

^  Wilk.  Repl.  49.  '  Stephens  PL  172. 

*  Gilb.  Repl.  130.     Stephens  PI.  175. 

'  Rev.  Statutes,  Part  III.,  tit.  xii.,  §  9,  10. 


OF    THE   PLEAS    IX   REPLEVIN.  143 

The  caption  and  detention  only  are  in  issue,  and 
not  the  property.  In  this,  replevin  differs  from 
trespass ;  for  in  trespass,  where  the  general  issue  is 
not  guilty,  the  defendant  may,  on  evidence,  show 
property  in  himself,  because  he  cannot  be  guilty 
of  trespass  in  taking  his  own  goods  ;^  but  in  reple- 
vin, upon  non  cepit,  the  property  by  the  plea  is 
admitted  to  be  in  the  plaintiff,^  and  therefor  is  not 
in  question  at  all ;  but  whether  the  defendant  took 
the  oroods  mentioned  in  the  declaration.  And  he 
cannot  be  admitted  on  the  trial  to  show  whose  the 
property  was,  because  he  has  put  it  in  issue  onl}^ 
before  the  jury,  whether  he  took  the  goods  or 
not,  and  not  whose  they  were.^  In  Mackinley  v. 
M'Gregor,"  Judge  Rogers  uses  the  following  lan- 
guage :  "  By  the  plea  of  non  cepit,  the  caption  and 
detention  only  are  put  in  issue,  and  not  the  pro- 
perty which  is  admitted.  The  only  point  to  which 
the  evidence  applies  under  that  plea,  is,  whether 
the  defendant  took  the  goods  or  not,  or  whether  if 
he  came  rightfully  into  possession,  he  has,  and 
continues  wrongfully  to  detain  them."  "  In  point 
of  form,  it  denies  the  taking  only,  and  is  pleaded 

^  Gilb.  Repl.  130.  Yickery  v.  Sherburne,  20  Maine  34. 
Holmes  v.  Wood,  6  Muss.  3.  Trotter  v.  Taylor,  5  Blackford 
431.  Whetwell  v.  Wills,  2  4  Pick.  25.  Ely  v.  Eble,  3  Comst. 
506.  Carrol  u.  Harris,  19  Ark.  237.  Van  Namee  u.  Bradley, 
69  111.  299.  '  3  Whart.  398. 


144  OF    THE   PLEAS   IX    REPLEVIIf. 

without  any  suggestion  for  a  return,  and  conse- 
quently there  cannot  be  judgment  for  a  return,  on 
that  plea.  But  although  it  denies  the  taking  only, 
yet  on  that  plea  the  unlawful  detention  may  also 
be  inquired  into ;  and  this  has  been  the  invariable 
and  constant  practice,  not  only  in  England,  but  in 
this  State,  from  the  first  settlement  of  the  province." 

The  defendant  may  plead  in  justification,  both  , 
where  he  disclaims,  and  where  he  allows  property  3 
in  the  plaintiff*.     Thus,  if  the  defendant  acknow- 
ledges the  caption,  and  claims  property  in  himself; 
this  is  a  good  bar,  because  it  confesses  the  caption, 
which  is  the  gist  of  the  action,  but  avoids  the  in-  j 
justice  thereof,  by  showing  that  he  had  a  right  to 
take  them ;  and  this  not  only  will  abate  the  writ 
of  the  plaintiff!,  whereby  the  deliverance  was  made, 
but  also  destroy  all  right  of  complaint  for  such 
caption  and  detention;  and  therefore  goes  in  bar 
to   the   action,  and   consequently   gives   a   return 
without  conusance  pro  retorno  habendo.^ 

If  the  defendant  confesses  the  caption,  and  pleads 
property  in  J.  S.,  this  is  in  bar  of  the  action  as 
well  as  in  abatement  of  the  writ ;  for  this  not  only 
shows  that  the  plaintiff"  had  no  right  to  a  deliver- 

'  Gilb.  Repl.  132.     6  Mod.  81. 


OF    THE   PLEAS    IN^   REPLEVIN^.  145 

ance  upon  the  writ,  but  also  that  he  has  no  cause 
to  complain  of  the  caption  and  detention  against 
his  pledges,  which  is  in  bar  of  the  action.  And 
this  is  not  only  a  justification  to  cover  the  defen- 
dant from  damages,  but  for  the  return  of  the  beasts ; 
because  he  doth  not  admit  property  in  the  plaintitf, 
but  disaffirms  it ;  and  therefore  the  beasts  ought  to 
come  back  to  the  defendant,  who  ought  to  retain  the 
beasts  against  every  one  but  J.  S.^  And  a  plea 
that  the  property  in  dispute  is  in  the  succession  of 
A.  and  not  the  property  of  the  plaintiff,  without 
naming  the  persons  in  the  succession  of  A.,  has 
been  held  good  on  demurrer.^ 

Justifications  that  affirm  propert}^  in  the  plain- 
tiff", cover  the  defendant  from  damages  onl}^,  because 
the  plaintiff'  is  entitled  to  his  beasts  or  chattels,  as 
having  property  in  them ;  and  the  defendant  in 
such  pleas  not  making  title  to  the  beasts  or 
chattels  as  a  pledge  to  answer  any  demand,  he 
ouffht  not  to  have  the  beasts  or  chattels  back,  but 
may  cover  himself  from  the  damages  only  for  the 
caption.^ 

'  Gilb.  Repl.  132.     Wilson  v.  Gray,  8  Watts  35.     Quincy  v. 
Hall,  1  Pick.  357.     Skidmore  v.  Devoy,  1  N.  Y.  Leg.  Obs.  123. 
^  Anderson  u.  Dann,  19  Ark.  650. 
^  Gilb.  Repl.  132,  133. 


146       OF  THE  PLEAS  IN  EEPLEVIN. 

Thus  (to  cite  an  old  example),  if  the  lord  dis- 
trained for  homage,  and  the  tenant  died,  and  his 
executors  sued  replevin.  Here  the  defendant  might 
justify,  and  cover  the  damages,  because  the  distress 
was  rightfully  taken  at  first,  though  by  the  death 
of  his  tenant,  he  could  no  longer  retain  it  as  a 
pledge  for  his  homage,  and  therefore  could  not  be 
entitled  to  a  return;  because  the  homage  was  a 
service  to  be  performed  by  the  tenant  in  person, 
and  the  distress,  being  to  compel  him  to  it,  could 
not  be  detained  longer  than  his  life ;  therefore  the 
lord  must  have  distrained  the  heir  de  novo.^  Yet 
defendant  may  plead  property  in  himself,  and  in 
the  plaintiff,  and  if  found  for  him  it  will  entitle 
him  to  a  return  of  the  property,  because  having 
had  the  possession  of  it  coupled  with  an  interest, 
which  makes  his  case  the  stronger,  until  improperly 
deprived  thereof  by  the  sheriff,  under  the  plaintiff's 
writ,  which  he  had  no  light  to  use  for  such  purpose, 
he  has  a  right  to  be  placed  in  statu  quo,  that  is, 
restored  to  the  possession  of  the  property  as  the 
joint  owner  thereof.^ 

The  defendant  may  plead  the  statute  of  limita- 
tions, if  there  is  one  in  force.  In  Pennsylvania, 
the  act  of  27th  March,  1713.     It  is  a  plea  in  bar, 

^  Gilb.  Repl.  132,  133. 

*  Wilson  u.  Gray,  8  Watts  36.   Rogers  v.  Arnold,  12  Wend.  30. 


OF    THE    PLEAS    12^   REPLEVIN^.  147 

and  in  form  should  be  actio  non  accrevit  infra  sex 
annos.  In  a  case  in  Siderfin,  where  the  replevin 
was  for  a  mare  and  colt,  plea  not  guilty  of  the 
taking  aforesaid  within  six  years.  The  plea  was 
overruled,  because  it  gave  no  answer  to  the  unjust 
detention,  which  the  replevin  complains  of,  as  Avell 
as  the  caption;  for  the  caption  may  be  just,  and 
the  detention  unlawful  :^  as  where  the  defendant 
eloigns  the  beasts,  or  drives  them  to  a  castle,  so 
that  the  sheriff  cannot  replevy  them  at  all,  this  is 
an  unlawful  detention,  however  just  the  caption 
might  have  been.  And  in  the  present  case,  it 
might  be  that  the  colt  was  foaled  in  the  pound,  and 
then  was  never  taken  by  the  defendant,  yet  it  may 
be  unlawfully  detained ;  and  though  he  might  not 
have  taken  it  within  six  years,  yet  he  might  have 
detained  it  until  the  day  of  purchasing  the  writ, 
and  that  detention  is  complained  of  by  the  writ, 
and  not  barred  by  the  statute. 

]S"on  cepit,  and  property  in  defendant,  may  be 
pleaded  together;  and  non  cepit,  property  in  a 
stranger,  and  other  pleas,  have  been  allowed  to  be 
pleaded  together." 

1  Gilb.  Repl.  131.     Arundel  v.  Trevil,  1  Sid.  81. 
'  Shuter  v.  Page,  11  Johns.  196.     Com.  Dig.  Plead.  E.  2. 
Whetwell  v.  Wells,  24  Pick.  25.     Martin  v.  Day,  1  Blackf.  291. 
11 


148  or    THE   PLEAS    IN^   REPLEVIN^. 

It  is  not  a  good  plea  to  say  that  the  defendants 
had  a  lien  on  the  goods  and  chattels  in  the  declara- 
tion mentioned,  for  a  certain  sum,  for  freight  and 
storage.  The  existence  of  a  lien  is  a  conclusion 
of  law  from  certain  facts  which  should  be  pleaded,^ 
presenting  to  the  opposite  i^arty  the  option  of 
admitting  them,  and  contesting  their  sufficiency  in 
point  of  law  by  demurrer,  or  of  denying  them  by 
a  proper  plea  to  the  country,  and  so  a  plea  which 
alleged  that  at  and  before  the  taking  declared 
upon,  one  P.  was  in  the  possession  and  apparent 
ownership  of  the  property  (certain  watches)  re- 
plevied with  the  knowledge  and  consent  of  the 
plaintiff,  and  that  being  so  in  possession  and  owner- 
ship he  pledged  them  to  the  defendant,  and  that 
from  the  time  of  pledging  until  the  delivery  to  the 
sheriff  the  defendant  retained  them  as  pawns  un- 
redeemed, was  held  to  be  insufficient  by  the  dis- 
trict court.^ 

In  several  of  the  States,  not  guilty  is  made  the 
general  issue  by  statute,  and  puts  in  issue  the 
right  of  the  plaintiff  to  the  possession,  and  also  the 

1  Weed  V.  Hill,  2  Miles  123.     McLees  v.  Felt,  11  Ind.  218. 

^  Hildeburn  u.  Nathans,  1  Phila.  Rep.  567.  McMahon  v. 
Sloan,  12  Penna.  State  R.  229.  2  Jones.  Swift  u.  Morrison, 
2  Weekly  Notes,  699  (Sup.  Court). 


OF    THE    PLEAS    IN^    REPLEVIN.  149 

wrongful  taking  and  detention  ;^  and  in  Tennessee 
any  special  matter  of  defence  may  be  given  in  evi- 
dence under  it. 

'  Rev.  Stat.  Missouri,  1845,  921.  Stat.  Kentucky,  1842,  503. 
Tennessee  Act,  15th  January,  1846.  Rev.  Stat.  Mass.,  see 
Appx.     Thompson  v.  Sweetser,  43  Ind.  312. 


CHAPTER    YII. 


OF    THE  AVOWRY. 


The  defendant  is  not  bound  to  plead  in  confes- 
sion and  avoidance,  and  go  for  damages.  He  may 
choose  to  avow  the  caption,  as  having  a  right  to 
the  property,  and  then  he  always  goes  for  a  retoi'no 
habendo.  When  he  adopts  this  course,  he  becomes 
plaintiff  as  well  as  defendant.  Plaintiff,  inasmuch 
as  he  seeks  to  recover  the  goods ;  defendant,  in 
that  he  seeks  to  pi^vent  a  recovery  in  damages  by 
the  plaintiff.  And  so  the  plaintift*  by  this  proceed- 
ing is  made  defendant  as  well  as  plaintiff;  plaintiff, 
as  his  object  is  to  recover  damages  for  the  taking; 
defendant,  as  he  seeks  to  prevent  a  return  of  the 
property  to  the  avowant.  Avowries  are  either  for 
rents,  services,  tolls, ^  or  for  damage  feasant,  and 
for  heriots,  and  such  rights  wherever  they  exist. 

The  office  of  the  avowry  is  not  to  deny  property 
in  the  plaintiff,  but  to  show  some  legal  right  in  the 

'  State  V.  Patrick,  3  Dev.  478. 


OF    THE    AYOWEY.  151 

avowant  to  take  the  goods  in  dispute  without  re- 
gard to  the  ownership.^ 

The  avowry  or  cognizance  on  a  distress  for  rent 
is  the  most  usual,  as  well  as  the  most  important 
form  of  this  class  of  pleas  :  the  former  term  apply- 
ing to  the  case  where  the  defendant  sets  up  right 
or  title  in  himself;  the  latter  heing  used  where  he 
alleges  the  right  or  title  to  be  in  another  person, 
by  whose  command  he  acted." 

The  avowtry  or  cognizance  is,  in  fact,  a  declara- 
tion,'^ several  may  be  filed  in  the  same  action,  and 
to  each,  several  pleas  in  bar  are  allowed  to  be 
pleaded ;  for  though  not  within  the  words,  it  is 
within  the  meaning  of  the  statute  4th  and  5th 
Anne,  ch.  16.  But  it  seems  a  party  is  not  estopped 
by  his  avowry  from  pleading  at  the  last  moment 
property,  if  he  has  the  leave  of  the  court.'*  If  the 
avowant  allege  that  he  took  the  goods  because 
rent  was  in  arrear,  and  they  were  on  the  demised 
premises,  it  is  good  in  form,  though  he  does  not 

^  Simcoke  v.  Frederick,  1  Ind.  54. 
'  Com.  Dig.  Plead.  3  K.  13,  14. 

'  Co.  Lit.  303,  a.     6  Mod.  103.     Wilk.  Repl.  63.     Wright  v. 
Williams,  2  Wend.  632.     Pike  v.  Gandall,  9  Wend.  149. 
*  Hellings  v.  Wright,  2  Harris  373. 


152  OF    THE    AVOWRY. 

say  in  so  many  words  that  the  distress  was  taken 
for  that  rent.^  But  if  he  has  claimed  property  and 
given  bond,  such  an  avowry  would  be  bad  in  sub- 
stance. 

If  the  defendant  took  the  chattels  in  his  own 
right,  he  should  in  terms  avow  the  act ;  but  if  as 
bailiff,  to  and  in  right  of  another,  he  should  use 
the  word  acknowledge.  The  mistake  of  the  one 
term  for  the  other  is,  however,  only  a  formal  defect. 
"Where  both  are  made  defendants,  the  one  avows, 
and  the  other  makes  cognizance.  It  was  necessary 
at  common  law,  for  an  avowry  or  cognizance  for 
rent,  to  show  that  the  defendant,  or  some  person, 
from  whom  the  reversion  came  to  him,  was  seized, 
and  the  quantity  of  estate  that  he  was  seized  of, 
and  that  he  made  a  lease  to  the  plaintiff  for  life, 
or  years,  and  the  descent  or  grant  of  the  reversion 
to  the  defendant ;  so  if  a  tenant  for  years  had  let 
the  estate  to  another  for  a  less  term,  at  a  certain 
rent,  and  distrained  for  the  rent,  it  was  incumbent 
upon  him,  in  his  avowry,  to  show  the  commence- 
ment of  his  estate,  by  laying  the  fee  in  some  person, 
who  granted  the  term,  and  then  deducing  the  title 
to  it  down  to  himself,  which  was  often  a  difficult 

1  Fallen  v.  Palmer,  Garth.  328.  Baird  v.  Potter,  17  P.  F. 
Smith  107. 


or  THE  AVOWRY.  153 

and  impracticable  thing,  especially  in  long  terms 
for  years,  which  were  generally  assigned  to  a  great 
number  of  persons.^  Thus,  an  avowry  for  rent, 
statinof  that  A.  hahens  titulum,  demised  to  the 
defendant,  and  that  he  made  an  under  lease  to  the 
plaintiff,  was  held  bad  on  demurrer.'^  It  was  not 
necessary  to  trace  the  title  from  its  remotest  source. 
The  law  was  satisfied  if  a  seizin  was  alleged  some- 
where. If  the  plaintiff  was  seized,  it  was  enough. 
If  not,  he  must  allege  the  latest  previous  seizin, 
and  thence  deduce  his  title.^ 

To  remedy  these  inconveniences,  the  statute  11 
Geo.  2d,  ch.  19,  was  passed,  which,  reciting  in  the 
twenty-second  section,  "  That  great  difficulties  had 
often  arisen  in  making  avowries  or  conusance  upon 
distresses  for  rent,  quitrents,  reliefs,  heriots,  and 
other  services,"  enacted  "  that  it  should,  and  might 
be  lawful  to  and  for  all  defendants  in  replevin  to 
avow  or  make  conusance  generally,  that  the  plain- 
tiff in  replevin,  or  other  tenant  of  the  lands  and 
tenements  whereon  such  distress  was  made,  en- 
joyed the  same  under  a  grant  or  demise,  at  such  a 
certain  rent  during  the  time  wherein  the  rent  dis- 
trained for  incurred,  which  rent  was  then,  and  still 

'  Wilk.  Repl.  54.  '  Reynolds  v.  Thorpe,  2  Str.  196. 

3  2  Wms.  Saund.  284.     Wright  v.  Williams,  5  Cowen  338. 


154  or    THE    AVOWRY. 

remained  due  ;  or  that  the  place  where  the  distress 
was  taken,  was  parcel  of  such  certain  tenements, 
held  of  such  honor,  lordship,  or  manor,  for  which 
tenements  the  rent,  relief,  lieriot,  or  other  service 
distrained  for,  was,  at  the  time  of  such  distress, 
and  still  remained  due ;  without  further  setting 
forth  the  grant,  tenure,  demise,  or  title  of  such 
landlord  or  landlords,  lessor  or  lessors,  owner  or 
owners,  of  such  manor,  any  law  or  usage  to  the 
contrary  notwithstanding.  And  if  the  plaintiff  or 
plaintiffs  in  such  action  should  become  non-suit, 
discontinue  his,  her,  or  their  action,  or  have  judg- 
ment given  against  him,  her,  or  them,  the  defendant 
or  defendants  in  such  replevin  shall  recover  double 
costs  of  suit."  In  the  same  spirit  the  Penns^dvania 
act  of  the  21st  of  March,  1772,  was  passed  in  these 
words :  "  Whereas  great  difficulties  often  arise  in 
making  avowries,  or  conusance  upon  distresses  for 
rent.  Be  it  enacted,  that  it  shall  and  may  be  lawful 
for  all  defendants  in  replevin  to  avow  and  make 
conusance  generally,  that  the  plaintiff  in  replevin, 
or  other  tenant  of  the  lands  and  tenements  whereon 
such  distress  was  made,  enjoyed  the  same  under  a 
grant  or  demise,  at  such  a  rent  or  service  during 
the  time  wherein  the  rent  or  service  distrained 
for  incurrred,  which  rent  or  service  was  then  and 
still  remains  due,  without  further  setting  forth  the 
grant,  tenure,  demise,  or  title  of  such  landlord  or 


OF    THE    AVOWRY.  155 

landlords,  lessor,  or  lessors,  any  law  or  usage  to  the 
contrary  notwithstanding-;  and  if  the  plaintiff  or 
plaintiffs,  in  such  action,  shall  become  nonsuit, 
discontinue  his,  her,  or  their  action,  or  have  judg- 
ment given  against  him,  her,  or  them,  the  defend- 
ant or  defendants  in  such  replevin  shall  recover 
double  costs  of  suit."^ 

The  Enjrlish  statute  has  been  construed  to  ex- 
tend  to  an  increased  rent  for  every  acre  of  the  land 
converted  into  tillage,^  and  to  fm-nished  lodgings  f 
but  not  to  a  rent  charge  or  annuity.^  They  are, 
howevei',  embraced  in  the  benefits  conferred  by 
other  parts  of  the  statute.  Thus,  in  replevin  for 
goods  taken  as  a  distress  for  a  rent  charge,  if  the 
defendant  succeeds,  he  is  entitled  to  an  assignment 
of  the  bond  under  the  provisions  of  the  act.' 

The  Pennsylvania  act  has,  however,  been  con- 
strued to  extend  to  ground-rents.*^  Judge  Kennedy 
thus  expresses  himself:  "And  although  it  has  been 
decided  in  England  in  the  cases  of  Lindon  v.  Col- 

^  Jones  V.  Gundwin,  3  W.  &  S.  631. 

^  2  H.  Black.  563.  '  5  Bos.  &  Pul.  224. 

*  Lindon  v.  Collins,  Willes  Rep.  429.  Bulpit  v.  Clarke,  4 
Bos.  &  Pul.  56. 

5  Short  V.  Hubbard,  2  Bing.  349. 

*  Franciscus  u.  Reigart,  4  Watts  117. 


156  OF    THE    AVOWRY. 

lins,  Willes's  Rep.  429,  and  Biilpit  v.  Clarke,  4  Bos. 
&  Pull.  56,  that  a  rent  charge  is  not  embraced  by 
the  terms  of  the  22d  sect,  of  11  Geo.  2d,  ch.  19, 
which  is  somewhat  similar  in  its  terms  to  the  tenth 
section  of  our  act  of  1772,  because  the  grantor  of 
the  rent,  who  was  the  party  bound  to  pay  it,  en~ 
joyed  no  land  under  a  grant  or  demise  from  the 
grantee,  who  was  to  receive  the  rent,  which  seems 
to  be  requisite  in  order  to  bring  the  case  within 
the  terms  of  the  section ;  yet  a  ground-rent  seems 
to  come  very  fairly  within  its  terms,  for  the  tenant 
of  the  lot,  of  whom  the  rent  is  demanded  here,  has 
occupied  and  enjoyed  it  under  a  grant  from  one 
under  whom  the  party  demanding  the  rent  claims 
as  assignee.  The  section  runs  thus  :  '  It  shall  and 
may  be  lawful  for  all  defendants  in  replevin,  to 
avow  and  make  conusance  generally,  that  the  plain- 
tiff in  replevin,  or  other  tenant  of  the  lands  and 
tenements  whereon  the  distress  was  made  enjoyed 
the  same  under  a  grant  or  demise,  at  such  a  rent  or 
service  during  the  time  wherein  the  rent  or  service 
distrained  for  incurred,  which  rent  or  service  was 
then  and  still  remains  due,  without  further  setting 
forth  the  grant,  tenure,  &c.'  ^ow,  although  the 
terms  of  this  section  may  not  literally  embrace 
what  was  called  a  rent  charge  before  the  passage 
of  the  statute  quia  emptores,  yet  it  is  evident  that 
ground-rents  may  well  be  included  in  the  terms 


OF    THE    AVOWRY.  157 

used;  and  as  the  evil  intended  to  be  remedied  was 
quite  as  great  in  cases  of  distress  for  them  as  for  any 
other  rents ;  we  ought  therefore,  to  conclude  that 
they  were  intended  to  be  embraced.  Indeed  this 
ought  to  be  the  conclusion,  unless  it  were  clear 
that  they  were  intended  to  be  excluded.  And 
upon  this  principle,  it  would  seem  that  the  statute 
of  11  Geo.  2d,  ch.  19,  has  been  held  in  some  of  its 
provisions  to  extend  to  a  rent  charge  as  well  as 
other  rents.  For  instance,  the  twenty-third  sec- 
tion, which  authorizes  sheriffs  in  the  execution  of 
writs  of  replevin  founded  upon  distresses  for  rent, 
to  take  bonds  with  sureties  of  the  plaintitf,  and  to 
assign  the  same  to  the  defendants  in  cases  where 
the  plaintiffs  fail  to  prosecute  their  writs  success- 
fully, has  been  decided  to  embrace  the  ease  of 
replevin  sued  out  for  goods  distrained  on  account 
of  a  rent  charge,  and  that  the  sheriff*  in  such  case 
may  take  a  bond  and  assign  it  as  in  case  of  a 
distress  for  any  other  species  of  rent.  Short  v. 
Hubbard,  2  Bing.  349.  So  in  practice,  the  first 
section  of  the  act  1772,  which  authorizes  the  sale 
of  goods  distrained  for  rent,  has  ever  been  con- 
sidered as  embracing  ground-rents." 

The  fact  that  the  statute  quia  emptores  was 
never  in  force  in  the  State  of  Pennsylvania,  seems 
to  have  been  overlooked  by  the  learned  judge  in 


158  OF    THE    AVOWRT. 

this  case.  Afterwards,  in  deciding-  the  case  of 
IngersoU  v.  Sei'geant/  the  same  judge  mentions 
this  fact,  and  conchides  from  it  that  ground-rents 
in  Pennsylvania  are  not  rents  charge :  a  conclusion 
which  would  have  relieved  him  from  some  of  the 
embarrassment  which  he  appears  to  have  felt  in 
Franciscus  v.  Reigart. 

It  is  also  necessary  to  state  the  demise  under 
which  the  plaintiff  holds  as  lessee  or  assignee,  and 
to  name  the  real  tenant,"  and  the  amount  of  the 
rent,^  and  when  payable,  but  a  variance  as  to  the 
amount  of  the  rent  due  will  not  be  material,  if  the 
terms  of  the  holding  are  proved  as  laid/  Though 
in  some  cases  it  is  said  that  this  is  true  only  when 

'  1st  Wharton  337. 

■■^  Banks  v.  Angell,  T  Ado].  &  Ell.  843.  Innes  v.  Colquhon, 
1  Bing.  265.  Smith  v.  Walton,  1  Moore  &  Scott  380.  In  the 
case  of  Kensil  v.  Ciiambers,  5  Phiia.  R.  64,  where  the  goods  of 
a  stranger  which  had  been  taken  on  a  distress  for  rent  were 
repleA'ied,  and  the  lessor  avowed  without  saying  who  was 
tenant,  the  district  court  said  it  was  enough  the  question  was 
whether  rent  was  owing  on  the  premises  when  the  distress  was 
made,  and  not  of  the  person  who  owetl  it. 

^  Cossey  v.  Piggons,  2  B.  &  A.  546.  Brown  v.  Saj'ce,  4 
Taunt.  320.  Tice  v.  Norton,  4  Wend.  663.  Philpott  v.  Dob- 
binson,  6  Bing.  104. 

*  Forty  V.  Imber,  6  East  434.  Harrison  v.  Barn  by,  5  T.  R. 
248.     Johnstone  w.  Hudleston,  per  Bayle}-,  J.,  4  B.  &  C.  938. 


OF    THE    AVOWRY.  159 

the  amount  laid  is  less  than  the  amount  proved, 
Waltman  v.  Allison,  10  Ban*  4G5 ;  but  see  Ban-  v. 
Hughes,  8  Wright  516,  and  Phipps  v.  Boyd,  4  P. 
F.  Smith  344.  In  this  case  it  is  said  there  is  an 
inaccuracy  of  expression  by  the  court  in  Waltman 
V,  Allison.  According  to  Gilbert,  it  was  an  easy 
thing,  as  the  old  law  stood,  to  name  the  tenant,  as 
fines  were  paid  on  every  alienation,  and  the  alienee 
was  presented  by  the  next  homage.  But  when 
these  small  fines  for  alienation  were  not  gathered, 
nor  the  courts  regularly  ke])t,  the  lords  were  at  a 
loss  to  find  their  real  tenants,  and  consequently  to 
know  whom  to  avow  upon.^ 

Where  the  avowant  is  the  assignee  in  reversion 
of  part  of  the  demised  premises,  he  may  avow  as 
at  common  law,  stating  the  facts  s[  ecially,  and 
leaving  the  ap])ortionment  of  the  rent  to  l^e  made 
by  the  jury — or  he  may  avow  in  the  general  form 
given  by  11  Geo.  2d,  ch.  19,  §  22,  as  ui)on  a  holding 
at  a  certain  rent,  and  if  he  avow  under  the  statute 
for  the  entire  rent,  or  with  a  deduction  from  the 
entire  rent,  greater  or  less  than  the  proportion 
properly  belonging  to  his  interest  in  the  reversion, 
the  judge  at  nisi  prius  may  direct  the  avowry  to  be 
amended.^ 

'  Gilb.  Repl.  134. 

■^  Roberts  v.  Snell,  1  Manning  &  Granger  577. 


160  OF    THE   AVOWRY. 

The  statute  21st  Henry  8th,  ch.  19,  after  reciting 
that  as  well  the  noblemen  of  the  realm,  as  divers 
other  persons,  by  fines,  recoveries,  grants,  and 
secret  feoffments,  and  leases  made  by  their  tenants 
to  persons  unknown,  of  the  lands  and  tenements 
holden  of  them,  have  been  put  from  the  knowledge 
of  their  tenants,  upon  whom  they  should,  by  order 
of  the  law,  make  their  avowries  for  their  rents, 
customs  and  services,  to  their  great  losses  and 
hinderances,  enacted,  that  "wheresoever  any  manor 
lands,  tenements,  and  other  hereditaments,  be  holden 
of  any  manor,  person  or  persons,  by  rents,  customs 
or  services,  that  if  the  lord  of  whom  any  such  manor 
lands,  tenements  or  hereditaments  be  so  holden, 
distrain  upon  the  same  manors,  lands,  or  tenements, 
for  any  such  rents,  customs  or  services,  and  replevin 
thereof  be  sued,  that  the  lord  of  whom  the  same 
lands,  tenements  or  hereditaments,  be  so  holden, 
may  avow,  or  his  bailiff  or  servant  make  conisance, 
or  justify  for  taking  of  the  said  distresses  upon  the 
same  lands,  tenements  or  hereditaments,  so  holden, 
as  in  lands  or  tenements,  within  his  fee  or  seigniory. 
Alleging  in  the  said  avowry,  conisance  and  justifi- 
cation, the  same  manors,  lands  and  tenements,  to 
be  holden  of  him,  without  naming  of  any  person 
certain  to  be  tenant  of  the  same,  and  without 
making  any  avowry,  justification  or  conisance, 
upon  any  person  certain.     And  likewise  the  lord, 


or    THE    AVOWRY.  161 

bailiff  or  servant,  to  make  avowry,  justification  or 
conisanee,  in  like  manner  and  form  upon  every 
writ  sued  of  second  deliverance." 

It  was  requisite  for  the  avowant  to  choose  be- 
tween this  statute,  and  the  statute  11  Geo.  2d,  ch. 
,19,  §  22,  for  he  was  not  allowed  to  frame  an  avowry 
under  both,  in  such  a  way  as  to  avoid  the  necessity 
as  well  of  setting  out  his  title,  as  of  naming  his 
tenant.  And  it  was  held  that  as  these  statutes 
dispensed  with  the  common  law,  one  or  other  must 
be  followed.  Thus  an  avowry  stating  that  J.  S. 
held  the  locus  in  quo  as  tenant  to  the  defendant, 
under  a  demise  thereof  by  A.  to  W.  at  a  certain 
rent  for  a  term  not  expired,  J.  ^.  being  assignee  of 
all  W.'s  estate  and  interest,  and  that  rent  was  in 
arrear  from  J.  S.,  is  not  good,  either  by  virtue  of 
11  Geo.  2d,  ch.  19,  §  22,  or  21  H.  8,  ch.  19,  or  by 
the  two  conjointly.  And  the  court,  by  Littledale, 
J.,  say,  The  object  of  the  statute  21  H.  8,  was  to 
avoid  the  inconvenience  arising  from  secret  assign- 
ments, which  prevented  the  landlord  from  knowing 
how  he  ought  to  avow.  But  the  statute  requires 
the  landlord  to  avow  taking,  "  as  in  lands  or  tene- 
ments within  his  fee  or  seigniory,"  perhaps  it  may 
be  sometimes  unnecessary  to  aver  seizin,  as  in  the 
case  put  in  Roll.  Abr.  314  (Avowry,  A,)  where  it 
is  said,  "  that  if  a  man  makes  a  gift  in  tail  render- 


162  OF    THE   AVOWRY. 

iiig  rent,  he  may  avow  without  laying  any  seizin, 
because  the  reversion  gives  him  a  sufficient  privity, 
and  he  shall  count  upon  the  reservation."  The 
privity  shown  in  such  a  case  might  he  sufficient, 
without  any  allegation  of  seizin ;  hut  it  is  unneces- 
sary to  decide  that  point,  because  here  no  privity  is 
shown  between  A.  and  the  defendant.  The  avowry 
and  cognizance  is  therefore  bad  under  21  H.  8,  and 
it  is  not  sustainable  under  11  Geo.  2d,  ch.  19 ;  for 
that  requires  the  defendant  in  replevin  to  allege 
that  the  plaintiff,  or  other  tenant,  held  under  a  grant 
or  demise,  or  that  the  place  was  parcel  of  such 
tenements,  as  there  stated,  which  is  not  done  here. 
And  without  this,  the  plaintiff  in  replevin  cannot 
know  how  to  plead.  ]S^or  can  the  avowry  and 
cognizance  be  good  under  the  two  statutes  taken 
together ;  for,  if  that  wei'e  so,  a  defendant  in  re- 
plevin might,  in  his  pleading,  leave  out  both  tenant 
and  landlord.  Of  two  statutes  dispensing  with  the 
requisites  of  the  common  law,  as  these  do,  one  or 
other  must  be  followed.^ 

The  statute  21st  Henry  8th  is  not  rej^orted  by 
the  judges,  nor  do  I  find  in  the  decisions  in  Penn- 
sylvania any  trace  of  its  ever  having  been  adopted. 

^  Banks  v.  Angell,  t  Aclol.  &  Ellis  854.  See  another  report 
of  this  case,  3  Nev.  &  P.  94. 


OF    THE    AVOWRY.  163 

The  same  thing  may  be  said,  so  far  as  I  have  been 
able  to  discover,  of  most  of  the  States.  By  the 
revised  statutes  of  ^ew  York,  the  21st  Henry  8th, 
and  11th  George  2d  were  amalgamated,  and  it  was 
not  necessary  to  set  forth  the  grant,  tenure,  demise, 
or  title  of  the  landlord  or  lessor,  or  to  name  any 
person  certain  as  the  tenant.  The  new  code  of  pro- 
cedure is  believed  to  be  equally  liberal.  We  have 
escaped  the  evils  which  produced  that  statute,  by 
reason  of  the  short  terms  for  which  our  leases  are 
commonly  made,  and  the  comparative  infrequency 
of  assignments  which  has  been  a  consequence. 
The  want  of  a  similar  enactment  is  at  times  felt, 
particularly  in  cases  where  the  original  lease  has 
been  assigned,  and  there  is  a  question  as  to  whether 
the  assignee  has  been  recognized  as  his  tenant  by 
the  lessor. 

Where  there  is  no  doubt  as  to  the  recognition, 
the  avowry  should  be  against  the  assignee,  laying 
the  terms  of  tenancy,  as  to  the  amount  of  the  re- 
served rent,  and  time  of  payment  according  to  the 
original  lease,  but  alleging  the  tenancy  to  be  "  by 
virtue  of  a  demise  thereof  to  A.  B.  (the  original 
tenant)  theretofore  made." 

If  the  lessor  has  not  recognized  the  assignee,  it 
is  said  the  avowry  may  state  that  the  premises  are 
12 


164  OF    THE   AVOWRY. 

held  by  the  original  lessee.  Chitty  advises  the 
insertion  of  two  avowries  in  this  ease,  one  on  the 
holding  of  the  lessee,  and  the  other  of  the  assignee/ 
If  it  is  at  all  doubtful  to  whom  the  orio^inal  lettino^ 
was,  the  allegation  of  tenancy  should  be  "by  virtue 
of  a  demise  thereof,  theretofore  made,"  omitting  the 
words  "to  him  the  said  j^laintift',"  or  to  "A.  B."^ 
And  this  general  form  of  avowry  would  probably 
be  good  in  all  cases,  for  proof  of  an  original  demise 
to  somebody,  with  title  deduced  to  the  plaintiif, 
would  support  this  averment,  but  not  an  averment 
of  a  direct  demise  to  the  plaintiff.' 

Where  the  defendant  avows  in  a  place,  which, 
on  the  face  of  the  avowry,  appears  to  be  a  different 
one  from  that  mentioned  in  the  declaration,  he  must 
traverse  the  place  laid  in  the  declaration.  As  when 
the  taking  is  alleged  at  the  parish  of  St.  Martin, 
in  the  Fields,  in  a  place  there  called  Maiden  Lane, 
and  the  defendant  says,  in  his  avowry,  that  the  said 
place  contains  one  messuage  in  the  parish  of  St. 
Paul's  Covent  Garden,  the  avowry  is  ill,  without  a 

^  Bull  V.  Sibbs,  8  T.  R.  327.  Boot  v.  Wilson,  8  East  316. 
Wadham  v.  Marlowe,  8  East  314,  in  note.  Auriol  v.  Mills,  4 
T.  R.  94.  Chitty's  PI.  1047,  n.  u.  Beaumont  v.  Wood,  10  S. 
&  R.  433. 

'  Chitty's  PI.  1047,  n.  z. 

»  Chitty's  PL  1047,  n.  y.     Bristow  y.  Wright,  Doug.  665. 


OF    THE    AVOWRY.  165 

traverse  of  the  place  in  the  declaration.  Peter  v. 
Duke,  2  Lutw.  1147,  1151.  Herein  replevin  dif- 
fers from  trespass ;  for  no  traverse  is  necessary  in 
the  latter,  and  the  plaintiff  may  make  a  new  assign- 
ment ;  but  there  can  be  no  new  assignment  in  re- 
plevin. If  the  defendant  avows  in  a  place,  which 
apparently  agrees  with  that  in  the  declaration,  but 
is  in  fact  different,  the  plaintiff  must  set  it  right  in 
his  bar.  As  when  the  plaintiff  states  the  taking 
in  Blackacre,  and  the  defendant  says  the  place 
contains  a  certain  number  of  acres,  and  is  called 
Greenacre,  whereof  the  place  in  the  declaration  is 
parcel,  and  avows  for  damage  feasant  in  his  free- 
hold, &c.,  there,  in  case  Blackacre  and  Greenacre, 
are  different  places,  the  plaintiff  may  allege  that  he 
took  the  cattle  in  Blackacre,  and  traverse  that  it  is 
parcel  of  Greenacre ;  or,  if  the  avowry  should  not 
state  Blackacre  to  be  parcel  of  Greenacre,  the 
plaintiff  may  demur,  or  he  may  waive  the  defect, 
and  traverse  the  taking  in  Greenacre.^  If  the 
parties  agree  in  the  place,  but  vary  in  the  quantity 
of  land  it  contains,  the  plaintiff  may  state  the  true 
quantity  in  his  bar,  and  proceed  in  his  justification 
without  any  traverse.^ 

^  Treverton  v.  Hicks,  Carth.  185. 
'  1  Wms.  Saund.  34  7,  n.  1. 


166  OF    THE   AVOWRY. 

Where  the  replevin  is  for  goods  taken  as  a  dis- 
tress for  the  arrears  of  ground-rent ;  we  have  seen 
that  in  Pennsylvania  the  owner  of  the  rent  is 
within  the  act  of  assembly  of  the  21st  March,  1772, 
and  there  is  no  reason  to  suppose  that  an  avowry 
stating  the  assignee  to  be  tenant  of  the  premises 
to  the  avowant,  "by  virtue  of  a  certain  demise 
thereof,  theretofore  made,"  would  not  be  good,  as 
in  ordinary  cases.  In  Franciscus  and  Reigart, 
however,  we  have  the  form  of  an  avowry  in  such 
case,  which  was  pronounced  good  by  the  supreme 
court ;  as  it  may,  on  that  ground,  be  preferred,  it 
is  given  at  length  in  the  appendix.  In  that 
case,  Franciscus  was  the  plaintiff  in  replevin,  and 
Reigart,  as  bailiff  of  Newman,  made  cognizance, 
and  acknowledged  the  taking  for  rent-arrear ;  and 
averred  that  Franciscus  enjoyed  the  lot  as  tenant 
of  ^N^ewman,  by  virtue  of  a  certain  demise  or  grant 
thereof  from  James  H.  to  Thomas  C.  his  heirs  and 
assigns,  under  a  yearly  rent.  (The  said  Franciscus 
being  the  assignee  or  alienee  of  the  said  Thomas 
C,  the  grantor  of  the  said  lot  and  premises ;  and 
the  said  Newman  being  the  grantee  or  alienee  in 
fee  simple  of  James  Hamilton,  the  grantor  of  the 
said  lot.)^ 

^  Franciscus  v.  Reigart,  4  Watts  98,  Cook  v.  Brightly,  10 
Wright  439. 


or    THE   AVOWRY.  1G7 

If  a  building  is  erected  upon  two  lots,  out  of  one 
of  which  a  ground-rent  issues,  and  the  ground-rent 
is  in  arrear,  and  distrained  for,  and  the  tenant 
brings  re])levin,  and  declares  for  a  taking  in  the 
building  generally,  the  avowant  must  state  his 
ground-rent,  and  out  of  what  part  of  the  premises 
it  issues,  and  allege  the  distress  to  have  been  made 
there.  If  this  last  allegation  is  omitted,  the  avowry 
may  be  demurred  to  as  containing  no  justification, 
for  the  taking  may  have  been  in  the  part  of  the  house 
not  subject  to  the  ground-rent.  If  the  allegation  is 
made,  the  plaintiff  must  take  issue  upon  it,  and  the 
evidence  upon  this  point  will  decide  the  cause.^ 

The  statute  11  Geo.  2d,  ch.  19,  does  not  extend 
to  avowries  and  cognizances  for  taking  cattle 
damage  feasant,  and  the  act  of  21st  March,  1772, 
is  equally  narrow.  They  must  therefore  state  the 
title  correctly,  as  that  the  defendant,  or  the  person 
for  whom  he  acts  as  bailiff,  was  seized  in  fee,  or 
was  entitled  under  a  person  who  was  himself  seized 
in  fee ;  and  it  is  said  to  be  enough  to  say,  "  that 
the  place  in  which,  &c.,  Avas  his  soil  and  freehold, 
and  that    he  took    the   cattle  damage  feasant,"^ 

^  Phillips  V.  Whitsed,  2  Ellis,  and  Ellis  Q.  B.  804. 

2  Willi.  Repl.  59,  60.  1  Wms.  Saund.  347  d.  n.  6.  2  Wms. 
Saund.  206  a.  Jones  v.  Kitchen,  2  Bos.  &  Pul.  359.  2  Wms. 
Saund.  284  d. 


168  or    THE    AVOWRY. 

although  contrary  to  the  common  rule  of  pleading, 
long  practice  having  sanctioned  it  in  this  case. 
By  the  revised  statutes  of  J^ew  York,  Part  III., 
Title  xii.,  §  11,  it  is  enough  to  say  in  such  case 
that  he  or  the  person  by  whose  command  he  acted 
was  lawfully  possessed  of  the  lands  and  tenements 
upon  which  the  distress  was  made,  and  that  the 
beasts  or  cattle  distrained  were  at  the  time  of  such 
distress  doing  damage  therein,  without  setting  forth 
a  title  to  such  lands  or  tenements. 

If  the  defendant  had  the  chattels  in  the  place 
mentioned  in  the  count,  this  satisfies  the  averment 
that  they  were  taken  there,  though  in  reality  the 
fact  w^as  otherwise ;  and  if  the  taking  at  such  place 
would  have  been  justifiable,  the  defendant  may  in 
his  avowry  admit  that  he  seized  them  there ;  but  if 
it  would  not,  he  must  necessarily  show  where  he 
took  them  and  aver  that  he  had  them  in  the  place 
alleged  by  the  count  in  his  way  to  the  pound,  or 
show  by  what  other  accident  they  came  there,  and 
then  proceed  with  the  avowry.^  A  formal  traverse 
that  the  defendant  did  not  take  them  in  the  place 
named  by  the  plaintiff",  must  not  be  added,  for  he 
has  admitted  what  in  contemplation  of  law  amounts 
to  taking  there,  and  so  there  is  no  inconsistency 

"  Abercrombie  v.  Parkhurst,  2  Bos.  &  Pul.  480.     Potter  v. 
!North,  1  Wms.  Saunders  347.  note.     Hammond  Nisi  Prius  465. 


OF    THE    AVOWRY.  169 

between  the  declaration  and  the  defence.^  It  is  not 
necessary  to  traverse  the  number  of  acres  stated  to 
be  in  the  locus  in  quo." 

If  there  are  two  or  more  defendants,  they  must 
all  avow  for  one  and  the  same  cause,  notwithstand- 
ing they  may  each  have  taken  the  chattels  on  a 
different  account;  because  if  one,  for  example, 
avows  for  rent  due  to  himself  alone,  and  another 
for  rent  due  to  himself  alone,  and  both  the  avowries 
are  true,  neither  of  them  can  have  judgment  for  a 
return,  inasmuch  as  the  one  is  not  more  entitled 
to  the  chattels  than  is  the  other,  and  as  the  goods 
ought  by  law  to  be  restored  to  the  defendants  (for 
it  appears  that  the  plaintiff  had  no  right  to  get 
possession  of  them),  the  court  are  unable  to  carry 
the  law  into  effect  by  pronouncing  the  proper  judg- 
ment.^ But  one  defendant  may  plead  non  cepit  as 
to  so  many  of  the  chattels,  and  avow  taking  the 
residue  for  one  cause,  whilst  the  other  defendant 
may  plead  non  cepit  to  the  latter,  and  avow  seizing 
the  former  goods  for  another  cause,  inasmuch  as  no 
difficulties  can  arise  by  this  mode  of  proceeding. 

»  Ryley  v.  Parkhuvst,  1  Wilson  219. 
^  1  Leon.  pi.  2n,  p.  193. 

^  Slingsby's  case,  5  Co.  19.     Basset  v.  Manxel,  3  Plowd.  at 
end  of  Reports,  10  a. 


170  OF    THE    AVOWRY. 

If  the  avowant  states  his  title  incorrectly,  he 
must  fail  upon  a  traverse  taken  to  it,  although  in 
reality  he  is  entitled  to  the  demand  for  which  he 
distrained  ;^  but  if  he  sets  out  his  title  truly,  and 
claims  more  than  is  his  due,  he  shall  have  a  return 
for  so  much  as  he  can  prove  himself  justly  entitled 
to,  and  shall  be  amerced  for  his  false  claim  of  the 
residue.  If  two  or  more  defendants  avow  and  the 
proof  is  of  a  demise  by  one  only,  it  will  not  support 
the  issue.^ 

Thus,  if  one  avows  for  rent,  and  claims  the  whole 
of  it,  whereas  he  is  proprietor  of  two  parts  only,  he 
must  fail  if  his  title  is  put  in  issue  modo  et  forma  by 
the  replication ;  but  supposing  that  he  is  proprietor 
of  the  whole,  and  he  alleges  that  he  distrained  for 
twenty  pounds  ari-ear,  whereas  it  turns  out  that 
five  pounds  only  is  due,  he  shall  have  a  return  for 
five  pounds,  and  be  amerced  for  his  false  claim  of 
the  remaining  fifteen.'^  So  if  he  avows  for  rent 
and  a  nomine  poenje,  and  does  not  show  that  the 
rent  was  demanded,  the  avowry,  though  bad  for 
the  nomine  poenas,  is  good  for  the  rent,  and  for  that 

^  Brown  v.  Sayce,  4  Taunt.  320.  Cossey  v.  Diggons,  2  B.  & 
A.  546. 

^  Ewing  V.  Yanarsdall,  1  S.  &  R.  3T0.  Chicago  and  Alle- 
gheny Oil  and  Mining  Co.  v.  Barnes,  12  P.  F.  S.  445. 

'  Harrison  u.  Barnby,  5  T.  R.  248.  Forty  v.  Imber,  6  East 
434. 


OF    THE   AVOWRY.  171 

a  return  shall  be  awarded.  It  has  been  held  by 
some,  that  if  the  defendant  avows  for  two  distinct 
causes,  and  it  appears  from  his  own  showing,  that 
the  one  is  a  just  claim,  but  that  the  other  is  not  a 
sufficient  cause  in  law  to  warrant  the  taking,  the 
avoAvry  shall  abate  altogether/  It  is  elsewhere 
affirmed,  that  there  is  a  diiference  of  opinion  in  the 
books,  whether  in  such  case  the  avowry  is  bad  in 
all  or  for  parcel  only.^  If  the  avowry  is  for  a  parcel 
of  a  demand  shown  to  have  accrued  due,  as  for  a 
quarter's  rent,  the  rent  being  payable  half  yearly, 
it  should  appear  that  the  residue  has  been  satisfied, 
because  a  distress  for  the  parcel  could  only  have 
been  made  under  those  circumstances.^ 

If  the  plaintiff  has  declared  for  a  less  number  of 
chattels  than  were  really  taken  and  replevied,  the 
defendant,  after  avowing  the  seizure  of  those 
mentioned  in  the  count,  may  (though  he  is  not 
obliged)*  aver  that  he  distrained  such  and  such 
goods  in  addition  to  those  alleged  by  the  plaintiff, 
and  which  have  been  restored  to  him,  and  pray 
that  a  writ  may  be  directed  to  the  sheriff,  com- 

1  Godfrey's  Case,  11  Co.  45.  =*  1  Roll.  Rep.  11. 

^  Holt  V.  Sambach,  Cro.  Car.  104.  Shepherd  v.  Boyce,  2 
Johns.  446. 

*  French  v.  Kent,  T.  Ra^^m.  33,  in  note. 


172  OF    THE   AVOWRY. 

manding  him  to  ascertain  the  fact,  and  if  true, 
cause  the  surpUis  chattels  to  be  returned  to  the 
defendant ;  and  this  without  disclosing  the  cause 
for  which  they  were  taken,  for  quoad  these  goods 
the  plaintiff  is  non-suited.  If  he  omits  so  to  do, 
he  is  without  remedy.^  If  the  plaintiff  has  declared 
(in  the  detinuit)  for  a  greater  number  of  chattels 
than  were  taken,  the  defendant  need  not  set  the 
matter  right;  because  notwithstanding  the  num- 
ber is  thereby  quodam  modo  admitted  (not  being 
denied),  yet  the  truth  may  be  shown  to  the  jury, 
who,  should  the  plaintiff  succeed,  will  measure  the 
damages  accordingly.^ 

Should  the  plaintiff  have  replevied  fewer  chattels 
than  were  actually  taken,  the  defendant  may  avow 
for  all,  and  if  he  succeeds,  will  have  judgment  pro 
retorno  habendo  of  those  mentioned  in  the  count, 
and  likewise  judgment  to  retain  the  others  which 
are  already  in  his  possession  irrepleviable.^ 

Surplusage  will  not  vitiate  an  avowry :  thus, 
where  one  made  cognizance  as  bailiff*  of  A.,  ad- 
ministrator to  B.,  and  it  appeared  that  A.  had  a 

'  Snelgar  v.  Henston,  Cro.  Jac.  611. 

^  Wood  &  Foster's  Case,  Leon.  pi.  54,  p.  42.  Snelgar  v. 
Henston,  Cro.  Jac.  611. 

3  35  Hen.  VI.,  Hil.  1,  p.  40.     Hammond's  X.  P.  467. 


OF    THE   AVOWRY.  173 

right,  but  not  as  administrator,  this  allegation  was 
rejected  as  surplusage/  Under  the  revised  statutes 
of  ^N^ew  York  an  avowry  for  rent  arrear  was  required 
to  set  forth  all  the  essential  facts  giving  the  right 
to  distrain.  The  omission  of  an  essential  averment 
will  not  be  cured  by  verdict.^ 

The  statute,  11  Geo.  2d,  ch.  19,  allowing  dis- 
tress for  rent  on  goods  clandestinely  removed,  does 
not  apply  to  strangers'  goods,  or  the  goods  of  a 
subtenant,  and  the  avowry  must  show  that  the 
goods  were  the  tenant's.  The  same  construction 
has  been  put  upon  the  Pennsylvania  act  of  25th 
March,  1825.^ 

An  avowry  of  taking  goods  off  the  demised  pre- 
mises, for  rent  arrear,  should  show  affirmatively 
that  possession  continued  on  the  part  of  the  tenant 
if  the  lease  has  expired,  or  it  will  be  bad  on  general 
demurrer.* 

^  Browne  v.  Dunnery,  Hob.  208.  Browne  v.  Dunnery,  Mo. 
887.     Bowles  v.  Poor,  Cro.  Jac.  282. 

'  Hill  V.  Stocking,  6  Hill.  211. 

^  Thornton  v.  Adams,  5  M.  &  S.  38.  Postman  v.  Harrell,  6 
Car.  &  Payne  225.  Fletcher  w.  Marillier,  9  A.  &  E.  461.  Frisby 
V.  Thayer,  25  Wend.  396.  Acker  v.  Witherill,  4  Hill  N.  Y.  R. 
112.  Adams  v.  LaComb,  1  Dall.  440.  Poole  v.  Longuevill,  2 
Wms.  Saunders  284,  b.  n. 

*  Burr  V.  Vanbuskirk,  3  Cow.  263. 


174  OF    THE   AVOWRY. 

An  avowry  by  executors  or  administrators  for  a 
distress,  under  the  29th  sect,  of  the  act  24:th  Feb- 
ruary, 1834,^  ought  to  show  that  the  lands  and 
tenements,  whereon  the  distress  was  made,  were, 
at  the  time  of  the  distress,  in  the  seizin  or  posses- 
sion of  the  tenant,  who  ought  to  have  paid  such 
rent,  or  in  the  possession  of  some  other  person, 
claiming  the  same  from  or  under  said  tenant  by 
purchase,  gift,  or  descent,  and  that  the  rent  fell 
due  before  the  decedent's  death.^ 

Where  a  distress  has  been  made  in  several 
places,  in  some  of  which  the  defendant  had  no 
right  to  distrain,  he  will  be  allowed  to  pay  into 
court  the  damages  for  taking  in  the  places  in  which 
he  had  no  right,  and  to  avow  for  the  rest.^  A  man 
may  take  a  distress  for  one  cause,  and  avow  for 
another.^  In  one  case  the  declaration  charged  that 
the  defendant  in  close  A.,  and  also  in  close  B.  took 
the  goods  of  plaintiff.  Defendant  avowed  that  he 
took  the  goods  in  A.,  for  arrears  of  rent  of  that 
close,  and  the  goods  in  B.  for  arrears  of  rent  in  that 

^  Pamph.  Laws  1834,  p.  78. 
^  Wright  V.  Williams,  5  Cow.  338. 
^  Lambert  u.  Hepworth,  2  Gale  &  Davidson  112. 
*  GroenA'elt  v.  Burwell,  Cora.  Rep.  78.    Butler  v.  Baker,  cited 
Carth.  44.     1  Ld.  Ray.  466. 


or    THE   AVOWRY.  175 

close.  Plea  in  bar  that  defendant  did  not  make  a 
separate  and  distinct  distress  upon  A.,  and  another 
upon  B.,  for  the  separate  rent  in  arrear,  but  illegally 
took  a  joint  distress.  Demurrer  which  was  sus- 
tained, J.  Blackburn  saying  :^  "  The  avowries  are 
perfectly  good  as  they  stand.  The  plaintiff's  plea 
in  bar  to  them  admits  in  effect  that  there  was,  as 
stated  in  the  avowries,  rent  in  arrear  in  respect  of 
each  of  the  separate  demises,  but  objects  that  the 
defendant  did  not  make  a  separate  and  distinct 
distress  upon  the  one  close  for  the  rent  in  arrear 
for  it,  but  made  and  took  one  joint  distress  for  the 
several  arrears.  This  raises  the  question  whether 
the  defendant  having  full  right  and  power  to  dis- 
train on  the  goods  in  each  close  as  he  did,  the  whole 
proceeding  was  nevertheless  invalidated  because  he 
at  the  time  of  distraining  declared  a  reason  different 
from  the  proper  one,  and  probably  at  that  time 
thougrht  the  reason  o^iven  to  be  the  true  and  suffi- 
cient  reason.  The  authorities  are  clearly  against 
such  a  proposition."^ 

'  Phillips  V.  Whitsed,  2  Ellis  &  Ellis  Q.  B.  804. 
'^  Greenville  v.   The   College  of  Physicians,   12   Mod.  386. 
Crowther  v.  Ramsbottom,  1  T.  R.  654. 


CHAPTEE    Till. 

THE   PARTIES    TO  AX  AVOWKY. 

JoiXT  tenants  must  join  in  an  avowry  for  rent, 
or  one  may  avoAV  for  himself,  and  make  cognizance 
as  bailiff  of  the  others ;  the  avowry  and  conusance 
must  comprehend  the  entire  rent,  and  as  one  joint- 
tenant  may  distrain  for  the  whole  in  point  of  interest, 
and  needs  no  authority  so  to  do ;  so  he  ma}^  make 
cognizance  as  bailiflP  of  his  co-tenants,  without  any 
express  authority  from  them,  and  his  being  bailiff 
is  not  traversable  on  account  of  his  interest  in  the 
rent.^  The  same  rule  prevails  with  regard  to  par- 
ceners, and  it  will  be  fatal  if  one  of  several  joint- 
tenants  or  co-parceners  distrains  and  avows  for  his 
individual  share  of  the  rent ;  for  the  tenant  is  not 
tenant  to  the  co-parcener  or  joint  tenant  for  his 
share  of  the  estate,  but  his  tenancy  is  a  tenancy  of 
the  whole,  held  under  all  the  joint-tenants  or  co- 
parceners as  one  landlord.^ 

'  15  Hen.  YII.,  17  a.  Stedman  v.  Bates,  1  Lord  Ra3\  64. 
Leigh  V.  Sheppard,  2  Bro.  &  Bing.  465.  Bonoyon  v.  Palmer,  5 
Mod.  72. 


THE   PARTIES    TO    AN    AVOWRY.  177 

Tenants  in  common  must  sever  in  an  avowry,^ 
and  the  avowry  of  each  must  be  de  una  medietate 
of  the  whole  rent,  and  not  of  a  certain  sum,  which 
amounts  to  a  moiety.  AVhen  the  action  is  against 
one  of  several  tenants  in  common,  he  should  avow 
for  his  own  proportion,  and  in  general  he  makes 
cognizance,  as  bailiff  of  his  companion,  for  the 
residue;  or  he  may  avow  only  for  his  undivided 
share  of  the  rent.^  If  the  action  of  replevin  be 
against  two  tenants  in  common,  they  should  join, 
one  avow^ing,  and  the  other  as  his  bailiff  making 
cognizance  for  an  undivided  moiety  of  the  rent ; 
and  the  one  who  first  made  cognizance  avowing  in 
his  own  right,  and  the  other  who  first  avowed 
making  cognizance,  as  his  bailifi",  for  the  other 
undivided  moiety.^  One  tenant  in  common  cannot 
avow  alone  for  taking  cattle  damage  feasant ;  but 
he  ought  also  to  make  cognizance  as  bailiff  of  his 
companion.^  But  if  tenants  in  common  make  a 
joint  lease  it  is  not  necessary  to  go  behind  the 
lease  in  the  avowry,  and  thus  a  joint  avowry  may 
be  good.^  An  avowry  for  a  rent  charge  devised  to 
the  wife,  may  be  made  by  the  husband  and  wife,  in 
right  of  the  wife.' 

'  Co.  Lit.  198,  b.  '  Harrison  v.  Barnby,  5  T.  R.  246. 

^  Cully  V.  Spearman,  2  H.  Bl.  386. 

*  Jones  V.  Gundrim,  3  W.  &  S.  531. 

^  Wynne  v.  Wynne,  2  Mann.  &  Grang.  8. 


178  THE   PARTIES   TO    AX   AVOWRY. 

The  executors  and  administrators  of  a  deceased 
landlord  may  avow  for  rent  due  in  the  lifetime  of 
the  landlord/ 

If  several  defendants  appear  by  attorney  and 
make  conusance  as  bailiffs,  and  one  of  them  is  an 
infant ;  yet  it  is  no  error ;  for  they  all  make  but  one 
bailiff,  and  appear  in  auter  di-oit.^ 

1  32  Hen.  YIII.,  ch.  37.  Act  24th  Feb.  1834,  sect.  8,  29. 
Wright  V.  Williams,  5  Cow.  338. 

^  Coan  V.  BoTvIes  et  al.,  1  Show.  165. 


CHAPTER    IX. 

OF    THE    REPLIOATIOJ^,  AND    OF    PLEAS    TO    THE 
AVOWRY. 

The  plaintiff  replies  to  the  plea  in  abatement, 
to  the  plea  in  bar,  or  justification,  and  when  the 
issue  is  reached,  the  cause  is  ready  for  trial.  To 
the  avowry  or  cognizance,  he  pleads  either  in  bar 
or  in  abatement,  and  as  has  been  said,  may  plead 
several  pleas  to  each  avowry  or  cognizance. 

Pleas  in  bar,  to  an  avowry  for  rent,  either  deny 
that  the  defendant  was  bailiff*,  or  deny  the  demise, 
by  pleading  non-tenant,^  or  non-demisit,^  or  allege 
that  the  demise  was  bad  in  law  by  reason  of  the 
coverture,  or  infancy^  of  the  plaintiff;  or,  if  the 
said  rent  became  due,  that  it  was  tendered  f  or,  in 
England,  that  the  defendant  had  been  satisfied  by 

'  Rogers  u.  Titcher,  1  Marsh.  541.  6  Taunt.  209.  Wheeler 
V.  Branseomb,  5  Adol.  &  Ellis  N.  S.  373. 

-  1  Marsh.  74. 

^  John  V.  Jenkins,  1  Cr.  &  Meeson  227.  Niblet  v.  Smith,  4 
T.  R.  504. 

13 


180  or    THE   REPLICATION, 

a  former  distress  :^  in  Pennsylvania  a  former  dis- 
tress, without  alleging  satisfaction,  is  sufficient;^  or 
payment,  or  that  nothing  is  in  arrear.^ 

Set-off  cannot  be  pleaded  in  replevin/  Bat  the 
tenant  may  avail  himself  of  anything  in  bar,  to 
the  avowry  for  rent  in  arrear,  which  goes  to  show 
that  the  I'ent  claimed  by  the  avowant,  or  any  por- 
tion of  it,  is  not  due/  And  if,  in  the  lease,  certain 
things  are  stipulated  by  the  landlord  to  be  done 
on  his  part,  which  form  the  consideration  for  the 
rent  to  be  paid  by  the  tenant,  and  the  landlord 
neglects  or  refuses  to  fulfil  his  covenant,  such 
breach  of  contract  may  take  away  his  right  to 
receive  the  rent,  or  so  much  of  it  as  is  equivalent 
to  the  loss  sustained  by  the  tenant ;  and  this  may 
be  given  in  evidence  under  the  issue  of  no  rent  in 

^  Lingham  v.  Warren  et  al.,  4  Moore  409.  2  Brod.  &  B.  36. 
Hnckl  V.  Ravenor,  lb.  662. 

^  Quin  u.  Wallace,  6  Whart.  452. 

'  Albright  v.  Pickle,  4  Yeates  264.  Hill  v.  Miller,  5  S.  &  R. 
357.     Williams  v.  Suiith,  10  S.  &  R.  202. 

*  Barnes  450.  Fairman  u.  Fluck,  5  Watts  516.  Beyer  v. 
Fenstermacher,  2  Whart.  95.  Peterson  v.  Haight,  3  Whart.  150. 
Warner  v.  Caulk,  3  Whart.  193.  Phillips  v,  Monges,  4  Whart. 
226.  Anderson  u.  Reynolds,  14  S.  «&  R.  439.  But  see  Clay  v. 
Ins.  Co.,  5  Phila.  R.  72.  Jones  v,  Morris,  3  Exch.  742.  Haz- 
lett  V.  Powel,  6  Casey  293. 


AND    OF    PLEAS    TO    THE    AVOWRY.  181 

arrear;^  or  it  may  be  specially  pleaded.-  The 
plaintiff  cannot  plead  de  injuria,  &c.,  to  an  avowry 
for  rent,  but  he  may  to  an  avowry  which  justifies 
the  taking  of  the  beasts,  damage  feasant,  or  as  a 
distress  for  poor  rates.^  • 

If  the  goods  are  privileged  from  distress,  that 
fact  may  be  pleaded.  If  the  goods  are  on  the 
premises  in  the  way  of  trade,  and  belong  to  a 
stranger,  or  if  they  are  the  goods  of  a  lodger  in  an 
inn  or  a  boarding-house,  he  may  bring  replevin 
for  them  if  they  are  distrained,  and  plead  these 
facts  to  an  avowry  for  rent.^  If  a  cabinet-maker 
i-ents  furniture  to  a  tenant,  it  is  not  protected  by 
this  rule  from  the  landlord's  distress.'^  If  the  goods 
replevied  are  subject  to  a  lien  or  charge,  the  charge 
upon  them  can  be  enforced  by  way  of  recoupment, 

^  Fail-man  v.  Fliick,  5  Watts  516.  Jones  v.  Morris,  3  Exch. 
V42.     Prescott  u.  Otterstatter,  29  P.  F.  S.  462. 

''  Warner  v.  Caulk,  3  Whart.  193. 

^  Crogate's  Case,  8  Co.  66,  b.  Jones  v.  Kitchin,  I  Bos.  & 
Pul.  76.  Willes  99.  Little  ti.  Lee,  5  Johns.  112.  Hopkins  o. 
Hopkins,  10  Johns.  369.  Selbj  v.  Bardons,  3  Barn.  &  Adol.  1, 
23  E.  C.  L.  R.  1. 

*  1  Inst.  47,  a.  Adams  v.  Grane,  3  Tyrwh.  326.  Horsford 
V.  Webster,  5  Tyrwh.  409.  Brown  v.  Sims,  17  S.  &  R.  138. 
Riddle  v.  Welden,  5  Whart.  9.  Simpson  v.  Hartop,  Willes 
512.     1  Smith's  Leading  Cases  301,  Am.  edition. 

^  Henkels  v.  Brown,  4  Phila.  R.  299. 


182  OF    THE    EEPLICATIOI^, 

for  the  charge  is  inseparable  from  the  thing  itself, 
and  therefore,  when  the  value  of  the  thing  is  to  be 
allowed  in  damages,  the  charge  necessarily  reduces 
the  damages  by  way  of  recoupment  in  order  to  do 
justice  to  both  parties.^ 

!Nil  habuit  in  tenementis  is  not  pleadable  to  an 
avowry  under  the  statute  11  Geo.  2d,  it  being  held 
that  the  tenant  is  estopped  thereby  to  call  upon 
the  landlord  to  show  his  title.  This  statute,  says 
Gould,  Justice,  in  Syllivan  v.  Stradling,^  was  not 
calculated  for  demises  by  deed,  but  aimed  at  other 
demises  :  enjoyment  was  the  matter  in  the  contem- 
plation of  the  makers  of  the  statute.  It  meant  that 
a  landlord,  in  cases  of  distress  for  rent,  when  there 
has  been  an  enjoyment,  shall  not  in  cases  of  re- 
plevin, be  obliged  to  set  out  his  title  in  his  plead- 
ings, though  they  should  go  as  far  as  a  surrebutter. 
But  the  tenant  is  pei'mitted  to  show  that  the  land- 
lord could  not  justify  the  distress,  by  showing  that 
his  title  has  expired  since  the  demise;^  and  in  this 
case  the  proper  plea  is  non-tenuit  ;^  or  that  he  has 
been  compelled  to  pay  sums  which  he  was  entitled 
to  deduct  from  the  rent,  and  thus  it  was  held  a 

>  Mackey  v.  Dillinger,  23  P.  F.  S.  93.  '  2  Wilson  208. 

3  England  v.  Slade,  4  T.  R.  682.    Robins  v.  Kitchen,  8  Watts 
390.     Hill  V.  Miller,  5  S.  &  R.  355. 
*  Hill  V.  Miller,  5  S.  &  R.  355 


AXD    OF    PLEAS    TO    THE    AVOWRY.  183 

good  plea,  that  before  the  lessor  had  anything  in 
the  land,  a  termor  granted  an  annuity  or  rent 
charge,  and  granted  and  covenanted,  that  the 
grantee  might  distrain  on  the  premises ;  that  the 
annuity  was  in  arrear,  and  the  grantee  demanded 
it,  and  threatened  distress ;  arid  the  plaintiff  paid 
the  amount  of  the  rent  then  due  to  the  avowant, 
and  so  nothing  in  ai-rear/  The  same  is  true  of 
interest  paid  on  a  mortgage  given  before  the  lease.^ 
The  defence,  it  seems,  would  have  been  equally 
available  under  the  plea  of  no  rent  arrear.  A 
lessee  for  years,  who  transfers  all  his  interest  to  a 
third  person,  whether  by  words  of  lease  or  assign- 
ment, and  with  a  reservation  of  rent,  cannot  distrain 
for  the  rent  when  due,  unless  the  instrument  by 
which  the  transfer  is  affected  contains  an  express 
power  of  distress,  but  it  is  not  enough  for  a  plea 
to  an  avowry  in  such  case  to  say  that  the  defendant 
has  parted  with  all  his  estate  in  the  premises.  It 
must  go  on  and  aver  that  the  estate  so  parted  with 
was  an  estate  for  years,  for  a  reservation  of  rent 
on  a  grant  in  fee  leaves  the  right  of  distress  in  the 
grantor.^ 

^  Taylor  v.  Zaraira,  6  Taunt.  524.  Rogers  v.  Pitcher,  6  Taunt. 
i>03.  Sansford  v.  Fletcher,  4  T.  R.  5 1 1.  Neave  v.  Moss,  I  Bing. 
3G0.     8  Moore  389. 

^  Johnson  v.  Jones,  9  Adol.  &  Ellis  809. 

^  Manuel  v.  Reath,  5  Phila  Rep.  II.  - 


184  OF    THE   KEPLICATIOlir,  * 

The  rule  that  a  tenant  shall  not,  during  his  pos- 
session of  premises,  dispute  the  title  of  the  land- 
lord under  whom  he  entered,  is  now  constantly 
recognized  in  ejectment.  The  origin  of  the  rule  is 
involved  in  some  doubt.  It  did  not  prevail  at 
common  law,  for  Littleton  says  the  lessor  may 
either  distrain  or  have  an  action  of  debt,  "but  in 
such  case  it  behooveth  that  the  lessor  be  seized  in 
the  same  tenements  at  the  time  of  his  lease ;  for  it 
is  a  good  plea  for  the  lessee  to  say,  that  the  lessor 
had  nothing  in  the  tenements  at  the  time  of  the 
lease,  except  the  lease  he  made  by  deed  indented, 
in  which  case  such  plea  lieth  not  for  the  lessee  to 
plead."^  In  replevin  we  trace  its  origin  clearly  to 
a  statute."  The  difficulties  to  the  landlord,  with- 
out any  corresponding  benefit  to  the  tenant,  which 
the  want  of  some  such  rule  occasioned,  produced 
in  England  the  statute  of  the  11  Geo.  2d,  ch.  19, 
and  in  the  State  of  Pennsylvania  the  corresponding 
statute  of  the  21st  of  March,  1772,  §  10.^^  They 
apply  to  the  action  of  replevin  only.  'New  York 
introduced  the  same  enactment  in  her  revised  code, 

^  Co.  Lit.  lib.  1,  ch.  7,  sec.  58. 

"^  Silly  V.  Dally,  Carth.  445.  1  Lord  Raymond  334.  Poole 
V.  Longueville,  2  Wms.  Saund.  p.  284.  Harrison  v.  M'Intosh, 
1  Johns.  380.     5  Comyn's  Digest,  Pleader,  3  K.  20. 

I  Syllivan  v.  Stradling,  2  Wilson  208. 


AXD    OF    PLEAS    TO    THE    AVOWRY.  185 

prior  to  which  the  common  l;iw  rule  prevailed.' 
The  rule  as  it  prevails  in  ejectment  is  supposed  in 
the  very  able  and  satisfactory  note,  by  the  Ameri- 
can editor,  to  the  Duchess  of  Kingston's  case,  and 
Doe  V.  Ohver,  in  the  American  edition  of  Smith's 
Leading  Cases,  to  be  referable  to  the  docti'ine  of 
equitable  estoppel  by  matter  in  pais.^  It  is  not 
improbable  that  the  rule  was  suggested  by  the 
statute  11  Geo.  2d,  ch.  19,  which  takes  away  the 
plea  in  replevin;  for  as  late  as  the  year  1815  we 
find  Dampier,  Justice,  in  Knight  v.  Smyth,  using 
the  following  language  :  "  It  has  been  often  ruled, 
that  neither  the  tenant,  nor  any  one  claiming  by 
him,  can  dispute  the  landlord's  title.  This,  I 
believe,  has  been  the  rule  for  the  last  twenty-five 
years,  and,  I  remember,  was  so  laid  down  by 
BuUer,  J.,  upon  the  western  circuit."^ 

In  like  manner  it  has  been  held  if  one  bori'ows 
personal  property  and  on  demand  refuses  to  return 
it,  he  cannot  set  up  title  to  himself  in  answer  to  a 
replevin  by  the  lender.'' 

'  Harrison  v.  M'lutosli,  1  Johns.  380. 

^  2  Smith's  Leading  Cases  (American  edition)  472.  See 
Naglee  v.  Ingersoll,  7  Barr  185. 

M  M.  &  S.  347.  Delaney  v.  Fox,  2  Com.  Bench,  Rep.  X.  S. 
7fi8. 

*  Simpson  v.  Wrenn,  50  III.  222. 


186  OF    THE    REPLICATION, 

Eviction  m-iy  be  pleaded,  but  a  plea  that  the 
defendant  pulled  down  a  summer  house,  whereby 
the  plaintiif  was  deprived  of  the  use  thereof,  was 
holden  insufficient :  it  was  a  mere  trespass.^  The 
plea  must  aver  that  the  evictor  entered  upon  the 
defendant's  possession  by  virtue  of  a  lawful  title, 
acquired  before  or  at  the  time  of  the  grant  to  the 
defendant,  and  that  the  lessee  was  in  consequence 
evicted.*  If  the  defence  is  eviction  by  the  lessor, 
the  plea  must  state  an  eviction  or  expulsion  of  the 
lessee  by  the  lessor,  and  a  keeping  him  out  of  pos- 
session until  after  the  rent  became  due.^ 

In  Pennsylvania,  plaintiff  may  plead  that  he  has 
paid  taxes  under  the  eighth  section  of  the  act  of 
6th  April,  1802,'^  and  under  sixth  section  of  the  act 
of  the  3d  of  April,  1804/  If  an  indenture  of  demise 
be  specially  stated  in  the  avowry,  the  plaintiff  may 
plead  non  est  factum/ 

There  may  be  a  plea  in  abatement  to  an  avowry,^ 

^  Hunt  V.  Cope,  Cowp.  242.     Naglee  v.  Ingersoll,  1  Barr  185, 
205.    Taylor  v.  Zamira,  6  Taunt.530.    2  Wms.  Saund.  181, n.  10. 
'  1  Wms.  Saund.  204,  n.  2. 

^  3  Smith's  Laws  516.  *  4  Smith's  Laws  203. 

^  Adam  v.  Diracalf,  5  Moo.  475. 
«  Cowne  V.  Bowles,  1  Salk.  93.     See  3  Mod.  248. 


AND    OF    PLEAS    TO    THE    AVOWRY.  187 

but  Wilkinson   sa3'S   it   is   unheard  of  in   modern 
practice/ 

To  a  plea  of  property  in  a  stranger,  a  replication 
that  the  defendant  entered  the  house  of  the  plain- 
tifi*  in  the  night-time  and  took  the  goods,  will  not 
be  allowed.^  When  this  is  the  plea  the  plaintifi' 
must  prove  property  in  himself.^ 

When  the  defendant  justifies  the  taking  of  the 
beasts  damage  feasant,  or  avows  for  rent,  the 
plaintifi"  may  reply  that  the  avowant,  after  taking 
the  distress  abused  it,  so  as  to  render  him  a  tres- 
passer ab  initio/  This  plea  to  an  avowry  for  rent 
is  taken  away  in  England  b}^  the  11  Geo.  2d,  ch. 
19,  sec.  19.  This  section  of  the  statute  is  not 
reported  as  in  force  in  Pennsylvania. 

To  the  avowry  or  cognizance  foi'  damage  feasant, 
the  plaintifi'  ma}'  reply  by  denying  the  defendant's 
title,  his  seizin  in  fee,  or  the  demise  stated  in  the 
avowi'y  or  cognizance,  or  that  the  plaintifi"  is  seized 
in  fee  of  other  premises,  in  respect  of  which  he  is 

1  Wilk.  Repl.  t4. 

'  Harrison  v.  M'Intosh,  1  Johns.  380. 

^  Simcoke  v.  Frederick,  1  Inil.  54, 

*  Hopkins  v.  Hopkins,  10  Johns.  369. 


188  OF    THE    REPLICATIOX,  ETC. 

entitled  to  a  right  of  common  on  the  locus  in  quo — 
or  that  the  cattle  escaped  by  reason  of  the  defect 
offences  which  the  defendant  is  under  an  oblijjfation 
to  repair/ 

'  Wilk.  Kepi.  77. 


CHAPTER    X. 

THE    TEIAL,   EVIDENCE,  ETC. 

The  cause  being  at  issue,  and  regularly  on  the 
trial  list,  will  be  tried  in  its  turn.  As  in  other 
cases,  the  party  on  whom  lies  the  affirmative  of  the 
issue  will  be  entitled  to  begin  and  conclude.  In  an 
avowry  for  rent  arrear,  and  the  plea  of  non  tenuit, 
the  avowant  begins.^  But  if  any  plea  is  pleaded 
by  which  the  affirmative  of  the  issue  is  thrown 
upon  the  plaintiff,  he  is  entitled  to  open  and  con- 
clude.^ In  England,  on  the  plea  of  no  rent  arrear, 
the  plaintiff  begins.^  The  contraiy  practice  is 
understood  to  prevail  in  the  city  and  county  of 
Philadelphia.  Some  contrariety  of  opinion  has 
been  entertained  as  to  who  is  entitled  to  begin  on 
the  plea  of  property.  In  a  case  where  proi)erty  in 
a  third  person  was  pleaded,  it  w^as  held  in  England 
that   the   defendant   had   a   right   to   begin.^      In 

^  3  Chit.  Gen.  Prac.  876. 

^  Curtis  V.  Wheeler,  4  C.  &  P.  196.  Williams  v.  Thomas,  4 
C.  &  P.  234. 

'  Cooper  V.  Egginton,  8  C.  &  P.  T48.  Williams  v.  Thomas, 
4  C.  &  P.  234.     Gentry  v.  Bargiss,  6  Blackf.  261. 

*  Colstone  v.  HiscoUs,  1  Moo.  &  Rob.  301. 


190  THE    TRIAL,  EVIDE^^CE,  ETC. 

Pennsylvania,  the  opinion  of  Judge  Kennedy,  as 
expressed  in  Marsh  v.  Pier,^  has  been  followed. 
The  learned  judge,  speaking  for  himself  alone, 
after  admitting  that  a  plea  purely  affirmative  gives 
the  defendant  the  right  to  conclude,  denies  that  the 
plea  of  property  produces  that  eflfect  in  replevin. 
The  plaintift'  must  first  prove  that  he  has  a  right 
to  maintain  his  writ  of  replevin,  by  show^ing  that 
he  has  either  an  absolute  or  special  property  in 
himself.  It  w^ill  not  be  enough  for  him  to  show 
the  mere  fact  of  the  naked  possession  of  the  pro- 
perty.^ And  in  a  subsequent  case.  Judge  Rogers, 
expressing  the  opinion  of  the  court,  says:  "The 
plea  of  property  throws  the  burden  of  proof  upon 
the  plaintiff  in  replevin,  to  prove  property  in  him- 
self. And  this  was  the  opinion  of  Justice  Ken- 
nedy, in  Marsh  v.  Pier  (4  E.  283),  wath  which,  for 
the  reasons  there  stated,  w^e  fully  concur."^  The 
same  doctrine  is  held  in  Maryland,*  Massachusetts,^ 
and  Indiana.** 

Where  the  plea  was  that  the  distress  was  not 
made  within  twenty  years  next  after  the  time  when 
the  right  to  distrain  first  accrued,  and  replication, 

^  4  Rawle  273.     See  Clemson  v.  Davidson,  5  Binn.  399. 
^  Co.  Lit.  145,  b.     Seibert  i^.  M'Henry,  6  Watts  301. 
'  Mackinley  v.  M'Gregor,  3  Whart.  398. 

*  Culliim  V.  Bevans,  6  Harr.  &  Johns.  469. 
^  Waterman  v.  Rol)inson,  5  Mass.  303. 

*  Simcoke  v.  Frederick,  1  Ind.  54. 


THE    TRIAL,  EVIDENCE,  ETC.  191 

that  the  distress  was  made  within  twenty  ^^ears 
next  after  the  time  Avhen  the  right  to  make  a  dis- 
tress for  the  said  rent  first  accrued.  It  was  held 
that  the  plaintiff  was  entitled  to  begin.^  One  test 
on  the  question  who  is  entitled  to  begin  is  to  con- 
sider who  would  be  entitled  to  the  verdict  in  the 
event  of  no  evidence  being  given  on  either  side. 
The  burden  of  proof  would  be  on  the  party  not 
entitled  to  the  verdict,  and  he  should  begin." 

The  party  having  the  right  to  begin  must  sup- 
port his  case  by  evidence.  He  should  be  jirepared 
to  prove  the  issue  raised  by  the  pleadings,  and  also 
to  show  the  amount  of  damages  to  which  he  is 
entitled.  See  ante,  pages  86  to  90,  for  cases  in 
which  he  will  be  required  to  prove  a  demand  before 
suit  brought.  It  is  upon  the  strength  of  his  own 
title,  not  on  the  weakness  of  his  adversary's,  that 
he  must  depend.' 

The  plea  of  non  cepit  admits  the  projjerty ;  the 
taking,  or  unlawful  detention  only  is  in  issue,  and 
to  this   question   the  evidence   must  apply. ^     A 

'  Collier  v.  Clark,  5  Adol.  &  Ellis,  N.  S.  467. 

^  Huckman  v.  Fernie,  3  M.  &  W.505.  Leete  v.  Gresham  Life 
Ins.  Co.,  7  Eng.  L.  &  Eq.  Rep.  581,  s.  c,  15  Jurist,  1161. 

^  Reinheimer  v.  Hemingway,  11  Casey  432. 

*  2  Stark.  Ev.  714.  Mackinley  v.  M'Gregor,  8  Whart.  391. 
Carroll  v.  Harris,  19  Ark.  237. 


192  THE    TRIAL,  EVIDENCE,  ETC. 

general  order,  before  the  commencement  of  the 
suit,  to  a  servant,  not  to  deliver  the  goods  to  the 
plaintiff,  is  admissible  in  evidence,  as  tending  to 
prove  an  unlawful  detention.^  But  it  is  said  special 
matter  in  justification  cannot  be  given  in  evidence 
under  this  plea.^  If  the  sherifi' returns  that  he  has 
replevied  the  property,  it  is  conclusive;  evidence 
will  not  be  received  to  contradict  it,  either  in  whole 
or  in  part.^  The  averment  of  an  unlawful  taking 
is  made  out  by  proof  that  the  defendants  obtained 
l^ossession  of  the  goods  from  a  person  not  authorized 
to  sell  them.^ 

The  plea  of  cepit  in  alio  loco  obliges  the  plain- 
tiff to  prove  either  that  the  cattle  or  goods  were 
taken  in  the  place  mentioned  in  the  declaration, 
or  that  they  were  in  the  defendant's  possession  in 
that  place ;  for,  as  the  defendant  took  them  wrong- 
fully at  first,  the  wrong  is  continued  and  repeated 
in  every  place  in  which  he  afterwards  detains  them." 

^  Johnson  v.  Howe,  2  Gilman  342. 

''  M'Farland  t;.  Barker,  I  Mass.  153.    Ely  v.  Ehle,  3  Corast.  506. 
"  Phillips  V.  Hyde,  1  Dall.  439.     Knowles  v.  Lord,  4  Whart. 
504. 

*  Gray  v.  Nathans,  1  Pike  55*1.  Pickering  v.  Buck,  15  East. 
44.     M'Mahon  v.  Sloan,  2  Jones  (12  Penna.  State  R.)  229. 

*  Walton  V.  Kersop,  2  Wils.  354.  Johnson  v.  Wolyer,  1  Str. 
507.  Abercrombie  v.  Parkhurst,  2  B.  &  P.  481.  Ely  u.  Ehle, 
3  Comst.  506. 


THE    TRIAL,  EVIDENCE,  ETC.  193 

Upon  issue  taken  on  a  plea  of  non-tenuit  modo 
et  forma,  or  of  non  demisit,  &c.,  in  bar  of  an 
avowry  for  rent  in  arrcar,  the  defendant  must 
prove  the  holding  as  alleged  in  the  plea ;  and  a 
variance  as  to  the  amount  of  annual  rent  will  be 
fatal. ^  So  if  there  is  a  misstatement  of  the  day 
on  which  the  i-ent  becomes  due  f  but  not  if  the 
amount  due  is  misstated.  Where  the  defendant 
made  cognizance  for  rent  for  two  years  and  a  quar- 
ter, ending  on  a  day  specified,  it  was  held  to  be 
suificient  to  prove  that  he  was  entitled  to  rent  for 
tw^o  years,  ending  on  that  day.^  Where  the  de- 
claration was  for  taking  cows  in  four  closes,  and 
the  avowry  stated  the  holding  at  a  ceilain  yearly 
rent,  and  the  evidence  was  that  the  four  closes,  and 
also  two  others,  were  held  at  that  rent,  it  was  held 
to  be  no  variance.^  Although  the  tenant  may  not 
plead  nil  habuit  in  tenementis,  or  prove  the  land- 
lord's inability  to  demise  under  the  plea  of  non 
tenuit,  or  non  demisit ;  he  may  show  that  the  land- 
lord's title  has  expired  subsequently  to  the  lease, 

^  Cossey  v.  Diggons,  2  Barn.  &  Aid.  546.  Browne  v.  Sn^-ce, 
4  Taunt.  320.  Ryder  v.  Malbon,  3  C.  &  P.  594.  Tice  v.  Nor- 
ton, 4  Wend.  663.  Ewing  u.Vanarsdale,  1  S.  &  R.  370.  Chicago 
Oil  and  Mining  Co.  u.  Barnes,  12  P.  F.  S.  445. 

'  2  Starkie  Ev.  716. 

^  Forty  V.  Imber,  6  East  434. 

*  Hargreave  v.  Sberwin,  6  B.  &  C.  34.  Page  v.  Cbucl<,  10 
Moore  264. 


194  THE   TRIAL,  EVIDENCE,  ETC. 

and  that   he  has  been  compelled  to  pay  rent  to 
another.^ 

When,  by  misrepresentation  and  fraud,  the  owner 
of  land  has  been  induced  to  execute  a  lease  whereby 
he  admits  himself  to  be  a  tenant,  upon  the  issues 
of  non  demisit  and  no  rent  in  arrear  it  will  be 
competent  for  him  to  show  these  facts,  and  the  fact 
that  he  was  persuaded  to  give  up  his  estate  by  it, 
is  the  strongest  evidence  of  misrepresentation  and 
fraud.^ 

If  the  tenant,  prior  to  the  time  at  which  the  rent 
distrained  for  became  due,  purchased  the  premises, 
with  the  assent  and  by  the  advice  of  the  landlord, 
that  fact  may  be  given  in  evidence  under  the  plea, 
of  non  tenuit  or  non  demisit,  for  the  j)laintiff  may 
traverse  the  tenancy.^ 

Proof  that  the  plaintilf  was  let  into  possession 
of  land  under  an  agreement  for  a  lease  before  the 
lease  was  executed,  is  not,  of  itself,  evidence  of  a 
tenancy/    But  where  a  person  had  been  in  posses- 

'  England  v.  Slade,  4  T.  R.  682. 

^  Robins  v.  Kitchen,  8  Watts  390. 

'  Syllivan  v.  Stradling,  2  Wils.  208.  Hill  v.  Miller,  5  S.  & 
R.  355. 

*  Hegan  v.  Johnson,  2  Taunt.  148.  Dunk  v.  Hunter,  5  Barn. 
&  Aid.  322.     Hayward  v.  Haswell,  5  Adol.  &  Ellis  265. 


THE    TRIAL,  EVIDENCE,  ETC.  195 

sion  for  more  than  a  year  under  an  agreement  for 
a  lease,  and  had  paid  rent,  it  was  said  a  valid  dis- 
tress might  be  made,  and  these  flicts,  given  in 
evidence,  were  enough  to  support  an  avowry.^ 

The  plea  of  no  rent  in  arrear  admits  the  tenancy 
as  alleged  in  the  avowry;^  and  the  plaintiff  must 
prove  that  the  rent  has  been  paid;-  obtaining 
judgment  for  the  rent,  or  giving  a  note  for  it,  does 
not  take  away  the  right  of  distress  unless  it  is  so 
expressly  agreed  f  and,  in  England,  it  has  been 
held  that  a  plea  of  a  former  distress,  for  the  same 
rent,  is  not  sufficient,  nnless  it  allege  that  the  rent 
was  satisfied  thereby,^  the  onus  of  proving  the 
satisfaction  being  on  the  plaintiff.  The  supreme 
court  of  Pennsylvania  has  refused  to  recognize  this 
doctrine,  and  it  seems  with  great  reason,  as  the 
landlord,  especially  since  the  act  3  Wm.  and  Mary, 

'  Knight  V.  Bennet,  3  Bing.  361.  Hanierlon  v.  Stead,  3 
Barn.  &  Cress.  478.  Mann  v.  Lovejoy,  1  Rj.  &  Mo.  355. 
Chapman  v.  Cluck,  4  Bing.  N.  C.  188.  Staniforth  v.  Fox,  7 
Bing.  590. 

'  2  Stark.  Ev.  717.  Hill  v.  Miller,  5  S.  &  R.  357.  Alexander 
V.  Harris,  4  Cranch  299. 

^  Snyder  v.  Kunkleman,  3  Penna.  487,  490.  But  see  Warren 
V.  Fornej',  13  S.  &  R.  52;  also  Davis  v.  Gyde,  4  Nev.  &  M.  462; 
S.  C.  2  Add.  &  Ellis,  622 ;  Bailey  v.  Wright,  3,  IVfCord  4S4. 

*  Hudd  V.  Ravenor,  2  B.  &  B.  662.  Lear  u-.,  Edmonds,  1  B. 
&  Aid.  157. 

14 


196  THE    TRIAL,  EVIDENCE,  ETC. 

sess.  1,  ell.  5,  and  the  aet  21st  Mareh,  1772,'  has 
the  sole  control  of  the  distress,  and  is  bound  there- 
by to  sell.^  ■  Where  the  goods  of  a  sublessee  were 
taken  by  the  paramount  landlord  as  a  distress  for 
rent,  it  was  held  that,  on  the  plea  of  no  rent  arrear, 
it  was  competent  for  the  sublessee,  plaintiff  in  re- 
plevin, to  prove  that  the  defendant  had  previously 
distrained  the  goods  of  the  mesne  tenant  for  the 
same  rent,  and  sold  the  same ;  and  that  the  de- 
fendant must  show  that  the  distress  first  taken  was 
insufficient.^  Of  course  a  plea  of  former  distress 
for  the  same  rent  would  have  been  good,  without 
alleging  satisfaction.  Judge  Kennedy,  after  re- 
viewing the  opinions  in  Hudd  v.  Ravenor,  and 
Lear  v.  Edmonds,  says,  "  These  oj)inions,  as  to  the 
construction  of  the  statute  W.  and  M.,  though 
coming  from  highly  respectable  judges,  would  ap- 
pear to  have  been  advanced  without  much  conside- 
ration, without  any  satisfactory  course  of  reasoning 
to  support  them,  and  in  direct  opposition,  as  I 
think  I  shall  show  in  the  sequel,  to  the  principle 
laid  down  and  established  in  the  King's  Bench,  in 
Yasper  v.  Edwards.  They,  therefore,  can  have  no 
influence  upon  our  judgment  in  giving  to  our  act, 
in  relation  to  the  same  matter,  a  different  construc- 
tion, when  its  various  provisions,  as  well  as  the 

1  1  Sm.  Laws  370.  '  Quin  v.  Wallace,  6  Whiirt.  452. 

'  Quin  V.  Wallace,  6  Whart.  464. 


THE    TRIAL,  EVIDENCE,  ETC.  197 

language  emplo3'ed,  would  seem  to  require  it. 
Considering  then,  as  Ave  do,  our  act,  as  to  the  sale 
of  the  goods,  to  be  imperative  on  the  landlord,  it 
would  seem,  therefore,  to  give  to  the  distress  the 
character  of  an  execution.  The  only  difterence 
which  now  exists  between  goods  taken  by  the 
landlord  as  a  distress  for  rent,  and  those  taken  in 
execution  by  the  sheriff  is,  that  the  former  are  re- 
pleviable,  whereas  the  latter  are  not.  But  this  is 
entirely  immaterial  in  regard  to  the  legal  effect  of 
a  distress  in  discharging  the  rent,  as  long  as  the 
goods  are  not  taken  from  the  landlord  by  a  replevin; 
and  even  if  they  are  it  can  make  no  difference, 
because  they  must  be  restored  to  him  again,  pro- 
vided the  distress  was  lawfullv  taken.  The  le^-al 
effect  of  the  sheriff"'s  taking  goods  of  the  defendant 
in  execution,  to  the  amount  or  value  of  the  debt,  is 
well  settled  to  be  a  discharge  of  the  defendant  from 
the  judgment,  and  all  further  execution,  although 
he  does  not  satisfy  the  plaintiff;'  or  has  not  returned 
the  writ ;  and  it  Avill  be  a  bar  to  a  scire  facias  on 
the  judgment,  so  that  the  plaintiff  cannot  have  a 
second  execution.^     And  why  should  not  the  same 

'  Slie  I).  Finch,  2  Roll.  Rep.  57.  s.  c.  Cro.  Jac.  514.  Clerk 
r.  Withers,  6  Mod.  292,  299.     s.  c.  1  Salk.  323. 

-  Mountnej^  v.  Andrews,  1  Cro.  Eliz.  237.  s  c.  4  Leon.  150, 
and  s.  p.  in  Clerk  v.  Withers,  2  Ld-  Raymond  1072.  2  Wnis. 
Sannd.  47  a,  note  1. 


198  THE    TRIAL,  EVIDEJfCE,  ETC. 

doctrine  and  principles  be  aj)plied  to  goods  dis- 
trained by  the  landlord,  when  of  sufficient  amount 
to  pay  the  rent?  If  there  be  any  difference  in 
reason  between  the  two  cases,  it  is  against  the 
landlord,  for  he  either  distrains  himself  in  person, 
or  by  a  bailiff  of  his  own  appointment,  and  there- 
fore has  the  goods  in  his  own  hands,  and  under 
his  own  control,  so  that  he  can,  by  a  sale  thereof, 
satisfy  the  rent;  whereas  the  execution  creditor 
is  in  some  degree  dependent  upon  the  sheriff's 
movement,  for  obtaining  actual  satisfaction  of  his 
debt.  In  Mountney  v.  Andrews,  the  defendant 
pleaded  to  a  scire  facias  upon  a  judgment  against 
him,  that  upon  a  fieri  facias  directed  to  the  sheriff 
of  the  county  of  Leicester  for  levying  the  debt,  he, 
by  force  thereof,  took  divers  sheep  of  the  defen- 
dants for  the  debt,  and  detaineth  them.  And  this 
was  held  by  the  court  to  be  a  good  plea,  notwith- 
standing it  was  not  alleged  that  the  plaintiff  was 
thereby  satisfied.  The  value  or  sufficiency  of  the 
sheep  to  satisfy  the  debt  is  not  set  forth ;  and  it  is 
plainly  inferable  that  they  had  not  been  sold  or 
disposed  of  by  the  sheriff,  but  still  remained  with 
him.  The  principle  of  this  case  is  recognized  and 
approved  by  three  of  the  judges  in  Clark  v.  With- 
ers ;  first,  by  Gould,  J. ;  second,  by  Powell,  J. ; 
and,  third,  by  Holt,  C.  J. :  seeing  then,  it  is  not 
requisite  that  the  defendant  should  set  forth  in  his 


THE    TRIAL,  EVIDEI^'CE,  ETC.  199 

plea  the  value  or  sufficienc}^  of  the  goods  taken  in 
execution  to  satisfy  the  judgment,  it  follows,  of 
course,  that  he  cannot  be  required  to  prove  more 
than  what  is  contained  in  it ;  so  that  if  the  goods 
have  been  found  insufficient  to  satisfy  the  judgment, 
it  will  lie  upon  the  plaintiff  to  prove  it.  Besides,  as 
it  has  ever  been  considered  oppressive,  and,  there- 
fore, unlawful,  to  make  a  second  seizure  of  the 
defendant's  goods  for  the  same  debt,  or  a  second 
distress  of  the  tenant's  goods  for  the  same  rent, 
without  some  necessity  or  good  cause  for  it ;  the 
presumption  is,  that  goods  sufficient  were  taken, 
in  either  case,  in  the  first  instance,  and  therefore  it 
is  that  it  rests  upon  the  plaintiff  in  the  judgment, 
or  the  landlord  claiming  the  rent,  to  repel  this  pre- 
sumption by  evidence,  and  to  show  some  justifiable 
cause  for  resorting  to  a  second  seizure  or  distress. 
This  doctrine  is  laid  down  and  established  by  the 
decision  of  the  court  of  King's  Bench  in  Yasper  v. 
Edwards  or  Eddowes,  12  Mod.  658,  1  Ld.  Raym. 
720.  1  Salk.  248.  A  cause  that  was  spoken  to 
several  times  by  counsel  at  the  bar,  and  one  in 
which  the  judges,  after  great  consideration,  de- 
livered their  opinions  seriatim  ;  Gould,  J.,  dissent- 
ing (not  as  to  the  goodness  of  the  plea,  but  in 
regard  to  the  replication),  from  Holt,  C.  J.,  and 
Powis  and  Turton,  Justices.  The  action  was 
trespass,  quare  clausum  fregit,  and  feeding  on  the 


200  THE    TRIAL,  EVIDENCE,  ETC. 

plaintiffs  grass  with  a  pig".  The  defendant  pleaded 
not  guilty  as  to  all,  except  the  trespass  by  the  pig; 
and  as  to  that,  that  the  plaintiff  had  taken  the  pig 
doing  the  damage,  and  impounded  it  in  a  common 
pound  at  J.,  and  there  the  said  pig-  ex  causa  predicta 
detinuit.  The  plaintiff,  l)y  his  replication,  con- 
fessed the  taking  and  impounding,  but  alleged 
that  afterwards  the  pig,  without  his  consent  and 
will,  did  escape  out  of  the  pound ;  to  which  the 
defendant  demurred.  The  plea  was  held  good,  and 
the  replication  of  the  plaintiff'  bad,  because  he  did 
not  undertake  to  show  thereby  that  the  escape  was 
without  his  default.  The  distress,  it  will  be  ob- 
served, being  taken  damage  feasant,  was  taken 
merely  as  a  pledge,  and  could  not  be  sold  by  the 
plaintiff;  which  made  the  case  stronger  for  him 
than  it  Avould  have  been,  could  he  have  satisfied 
himself  by  the  sale  of  the  distress.  The  court  held 
that  before  the  distress  is  made  in  such  case,  the 
plaintiff'  has  choice  either  to  distrain  or  bring  his 
action  of  trespass ;  but  having  made  his  election, 
and  taken  a  distress  in  that  case,  he  could  never 
have  recourse  to  any  other  remedy,  till  that  which 
he  had  adopted  proved  ineffectual  through  the  act 
of  God,  or  the  wrong  of  the  defendant,  neither  of 
which  was  alleged  by  the  plaintiff  in  his  replica- 
tion. It  is  clear  that  the  judges,  in  delivering 
their  opinions  as  to  a  distress  being  prima  facie,  a 
bar  to  a  second  distress,  or  another  remedy,  make 


THE    TRIAL,  EVIDENCE,  ETC.  201 

no  distinction  between  a  distress  for  rent  and  a 
distress  damage  feasant ;   so  that  if  a  distress  be 
taken  for  rent,  an  action  of  covenant  or  debt,  or 
case  for  nse  and  occupation,  cannot  be  supported 
for  it  afterwards,  without  the  kmdlord's   showino- 
that  he  had  lost  the  benefit  of  the  distress  without 
any  default  upon  his  part ;  or  that  it  had,  upon  a 
sale  thereof,  proved  insufficient  to  pay  the  whole  of 
the  rent,  and  that  his  action  was  only  brought  for 
the  residue.    ^It  is  enough,' says  Lord  Holt,  'for 
him  that  is  distrained,  to  show  a  distress  taken, 
and  it  behooves  the  other  side  to  show  how  the 
possession  of  it  happened  to  be  lost;  and  since  he 
has  lost  the  possession,  he  knows  best  how.'     And 
so  it  may  be  said  in  the  case  before  us,  that  it  was 
enough  for  the  plaintiff  to  show  a  prior  distress 
taken  for  the  same  rent,  but  after  that  was  shown, 
it  behooved  the  defendant,  who  had  the  possession 
and  control  of  the  distress,  to  show  what  had  be- 
come of,  or  been  done  with  it,  and  if  he  has  parted 
with  it,  he  best  knows,   and  ought,  therefore,  to 
show  it.     He  has  evidence  of  its  value  within  his 
knowledge,  or,  at  least,  must  be  presumed  to  have, 
which  the  plaintiff  caimot  be  expected  to  have,  as 
it  was  his  duty  to  have  it  appraised :  and  if  he  sold 
it,  he  ought  to  give  an  account  thereof,  by  showing 
the  price  at  which  the  articles  distrained  on  were 
respectively  sold;   otherwise  the  fair  presumption 
is,  that  he  is  fully  paid  the  amount  of  his  rent ;  and 


202  THE    TRIAL,  EVIDEK^CE,  ETC. 

especially,  as  would  seem  from  the  paper  book  here, 
that  instead  of  evidence  being  given,  going  to 
repel  this  presumption,  evidence  was  given  on  the 
part  of  the  plaintiff  showing  that  the  former  dis- 
tress was  of  sufficient  value  to  satisfy  the  whole 
amount  of  the  rent  claimed.  And  these  are  the 
principles  w^hich  would  seem  to  govern  in  the  case 
of  a  sheriff,  who  has  taken  goods  under  an  execu- 
tion placed  in  his  hands,  and  would  make  it  his 
duty  to  show  by  pioof,  after  evidence  given  of  his 
having  taken  the  goods,  how  he  had  disposed  of 
them,  and  what  they  had  brought  at  sale,  if  any 
appeared  to  be  made.^  We,  therefore,  think  that 
the  district  court  was  wrong  in  charging  the  jury, 
that  the  plaintiff  was  bound  to  show  that  the  goods 
first  distrained  had  been  converted  into  money, 
and  were  sufficient  to  pay  the  whole  rent.  On  the 
contrary,  we  are  of  opinion,  that  it  was  incumbent 
on  the  defendant,  in  order  to  justify  his  making 
the  second  distress,  to  show  how,  and  in  what 
manner  the  first  had  been  disposed  of  by  him,  as 
it  was  entirely  under  his  control,  and  to  show  that, 
upon  a  lawful  disposition  made  of  it  by  him,  it  had 
proved  insufficient  to  pay  the  whole  of  the  rent. 
"We  consider  Lear  v.  Edmonds,  Hudd  v.  Ravenor, 
noticed  before,  and  Linghara  v.  Warren  (2  B.  & 

1  Beale's  Exs.  v.  The  Com.,  11  S.  &  R.  299,  304.     Little  o. 
Delancey,  5  Binn.  272-3. 


THE    TRIAL,  EVIDENCE,  ETC.  203 

B.  36.  E.  C.  L.  R.  Yol.  6,  p.  10),  containing  the 
same  principle,  as  repugnant  to  the  principle  of 
Yasper  v.  Eddowes,  which  may  be  regarded  as  a 
binding  authority  upon  us,  it  having  been  decided 
befoie  the  revolution,  and  which  settles  the  prin- 
ciple that  a  party  having  a  right  to  distrain,  cannot, 
after  having  made  a  distress,  resort  to  any  other 
remedy  for  the  same  cause,  without  showing  that 
the  distress  has  been  rendered  unproductive  either 
by  the  act  of  God,  or  the  act  of  the  person  from 
whom  it  has  been  taken."^ 

But  a  distress  upon  the  tenant's  goods,  followed 
immediately  by  a  replevin  by  the  tenant,  and  a  re- 
turn to  the  writ  by  the  sheriff  that  he  had  executed 
the  writ  by  delivering  the  goods  to  the  plaintiff  in 
the  replevin,  is  not  such  an  extinguishment  or  satis- 
faction in  law  as  will  discharge  a  surety  for  the 
rent  from  his  separate  covenant.^ 

A  failure  upon  the  part  of  the  landlord  to  comply 
with  stipulations  in  the  lease  which  enter  into  the 
consideration  therefor,  as,  for  instance,  to  do  certain 
repairs,  takes  away  his  right  to  receive  the  rent, 
or  so  much  of  it  as  is  equivalent  to  the  loss  sus- 
tained by  the  tenant,  and  this  failure  may  be  given 

^  Quin  V.  Wallace,  6  Whart.  452,  4G4. 
^  King  V.  Blackmore,  22  P.  F.  Smith  349. 


204  THE    TRIAL,  EVIDENCE,  ETC. 

ill  evidence  uiider  the  plea  of  no  rent  in  arrear.^ 
IS^ot  so  where  the  promise  to  repair  forms  no  part 
of  the  original  contract,"  and  the  proper  measure  of 
damages  in  such  a  case  is  the  difference  between 
the  worth  of  the  premises  in  the  condition  in  which 
they  remained,  and  that  which  they  would  have 
been  in,  had  the  landlord's  covenant  been  per- 
formed; or,  in  other  words,  so  much  less  as  they 
would  have  rented  for  without  the  covenant.^ 

Where  the  replevin  is  by  a  stranger,  the  tenant 
is  not  a  competent  witness  under  the  plea  of  no 
rent  arrear  to  prove  that  no  rent  is  due,^  unless  the 
disability  of  interest  has  been  removed  by  statute ; 
but  he  is  competent  to  prove  that  the  property 
belonged  to  the  plaintiff,  and  not  to  himself,  the 
tenant,^  but  he  will  not  be  allowed  to  prove  that 
the  distress  was  excessive.*^ 

^  Fairman  v.  Fluck,  5  Watts  516.  Prescott  v.  Otterstatter, 
29  P.  F.  S.  463. 

^  I'hillips  V.  Monges,  4  Whart.  226.  Jones  v.  Morris,  3 
Exch.  742. 

^  Fairman  v.  Fluck,  5  Watts  51t.  Prescott  v.  Otterstatter, 
29  P.  F.  S.  463. 

*  Kessler  v.  M'Conachy,  1  Rawle  485.  Rush  v.  Flickwire, 
17  S.  &  R.  82. 

^  M'Conachy  v.  Kessler,  3  Penna.  467. 

«  Earns  v.  McKinney,  24  P.  F.  S.  387.  McKinney  v. 
Reader,  6  Watts  40.  See  Gibbs  u.  Cruikshank,  8  Law  R. 
Com.  Pleas  455. 


THE    TKIAL,  EVIDENCE,  ETC.  205 

Where  issue  was  joined  upon  nou  tenuit,  and 
also  upon  the  plea  of  nothing  in  arrear,  it  was  held 
that  the  first  issue  being  found  for  the  plaintiff,  the 
second  became  immaterial;  and  that  the  proixn- 
course  was  to  discharge  the  jury  from  giving  a 
verdict,  but  that  if  any  verdict  was  entered,  it 
must  be  for  the  plaintifl'.^  If  the  fact  of  the  defen- 
dant being  bailifi'  is  put  in  issue,  evidence  of  a  sub- 
sequent ratification  and  approval  will  be  sufiicient, 
although  there  was  no  prior  conniiand  given.^ 

If  it  is  intended  to  proceed  under  17  Car.  II.,  eh. 
7,  the  avowant  should  be  prepared  to  prove  the 
amount  of  rent  in  arrear,  and  also  the  value  of  the 
distress. 

Where  issue  is  taken  on  a  plea  of  tender  of 
amends  to  the  person  entitled  to  receive  them,  it 
seems  that  evidence  of  a  tender  to  the  bailiff'  making 
the  distress,  the  principal  being  present,  is  insuffi- 
cient. But  if  a  distress  be  made  by  a  bailiff",  in 
the  absence  of  the  principal,  and  the  bailiff*  be 
proved  to  be  his  usual  receiver,  a  tender  to  the 
latter  seems  to  be  equivalent  to  a  tender  to  the 
principal.^ 

^  Cosse)^  V.  Diggons,  2  Barn.  &  Aid.  546. 
^  Trevilian  v.  Pine,  11  Mod.  112. 

^  Gilb.  Repl.  60.  Pilkington  v.  Hastings,  5  Co.  75.  Browne 
V.  Powell,  4  Bing.  230. 


20G  THE    TRIAL,  EVIDEN^CE,  ETC. 

Under  the  plea  of  property,  the  defendant  is  at 
liberty  to  show  either  a  general  or  special  property 
in  himself,  either  by  bill  of  sale,  delivery  from  the 
plaintiff,  or  otherwise.^  See  as  to  evidence  of 
ownership  under  the  Pennsylvania  act  of  April  10, 
1862,  for  the  protection  of  logs  on  the  Susquehanna.^ 
And  the  place  of  taking  is  not  material.  As  to 
what  constitutes  a  deUvery  see  Winston  v.  Leonard, 
12  Harris  14. 


In  En 2:1  and  it  seems  to  have  been  held  that  this 
was  purely  an  affirmative  plea,  and  thi-ew  the  onus 
upon  the  defendant.  In  Pennsylvania,'^  and  Mary- 
land,* on  the  contrary,  it  has  been  held  that  this 
plea  throws  the  burden  of  proof  on  the  plaintiff  in 
replevin,  to  prove  property  in  himself  Possession 
is  prima  facie  evidence  of  title.^ 

If  a  person  procures  the  delivery  of  goods  under 
a  fictitious  pretext  of  a  purchase  upon  credit,  with- 

^  1  Yeates  191.     Emmett  v.  Briggs,  1  New  Jersey  53. 

^  Weiler  v.  Coleman,  21  P.  F.  Smith  346. 

'  Marsh  v.  Pier,  4  Rawle  283.  Clemson  v.  Davidson,  5  Binn. 
399.     Mackinley  v.  M'Gregor,  3  Whart.  398. 

*  6  Harris  &  Johns.  411. 

5  Lynch  v.  Welsh,  3  Barr  291.  Johnson  v.  Neale,  6  Allen 
221.  Simcoke  v.  Frederick,  1  Ind.  54.  Ingersoll  v.  Emraerson, 
1  Ind.  16.     Chambers  v.  Hunt,  2  New  Jersey  552. 


THE    TRIAL,  EYIDEN^CE,  ETC.  207 

out  intending  that  the  seller  shall  be  paid  for  them, 
this  is  such  a  fraud  as  will  vitiate  the  sale,  and 
prevent  the  property  from  l^eing  changed  by  the 
pretended  purchase.'  In  order  to  prove  such  a 
fraud,  it  is  not  absolutely  necessary  to  prove  a 
false  pretence,  or  other  direct  artifice,  in  respect  to 
the  individual  purchase  sought  to  be  avoided. 

It  may  be  shown  that  the  transaction  immedi- 
ately in  issue  was  one  of  a  series  of  acts,  which, 
taken  together,  evince  the  existeifce  of  a  precon- 
ceived design  to  obtain  possession,  without  paying 
for  them,  of  a  quantity  of  goods,  of  which  those  in 
question  are  a  part.  Thus  it  may  be  shown  that 
the  quantity  of  goods  purchased  on  credit  from 
many  persons  was  inordinately  large,  in  proportion 
to  the  regular  purposes  of  the  apparent  business  of 
the  party  obtaining  them  ;  that  they  were  not  kept 
or  dealt  with  in  a  place  or  in  a  manner  to  indicate 

^  Noble  V.  Adams,  7  Taunt.  59.  Abbott  v.  Bany,  5  Moore 
98.  Peer  v.  Humphrey,  2  Ad.  &  El.  495.  Earl  of  Bristol  v. 
Wilsmore,  1  B.  &  C.  514.  2  D.  &  R.  755.  Reed  v.  Hutchin- 
son, 3  Camp.  352.  Ferguson  v.  Carrington,  9  B.  &  C.  59. 
Taylor  i\  Plummer,  3  M.  &  Selw.  562;  1  M.  &  Selw.  517.  Irving 
V.  Motley,  7  Bing.  543.  Bufflngton  v.  Gerrish,  15  Mass.  156. 
Palmer  v.  Hand,  13  Johns.  434.  Mowry  v.  Walsh,  8  Cow.  238. 
Williams  v.  Merle,  11  Wend.  80.  Root  v.  Freneli,  13  Wend. 
570.  Hodgden  v.  Hubbard,  18  Vt.  504.  Coble  v.  Nonemaker, 
28  P.  P.  S.  501. 


208  THE    TEIAL,  EVIDENCE,  ETC. 

that  they  had  been  fairly  acqun*ed,  for  tho  purpose 
of  regular  business ;  that  forced  sales  were  made 
at  an  nnder  value,  of  goods  bought  shortly  before 
upon  credit;  that  the  subsequent  conversations  and 
deportment  of  the  party  were  indicative  of  a  design 
to  evade  payment,  and  to  make  unjust  appropria- 
tions of  the  property.^  The  effect  of  such  evidence 
is  for  the  jury.  But  this  doctrine  ought  not  to  be 
extended  so  far  as  to  enable  the  original  vendor, 
who  has  been  imposed  upon,  to  follow  goods  into 
the  hands  of  purchasers  who  have  become  interested 
in  them,  bona  fide,  in  the  regular  course  of  business.^ 

A  verdict  and  judgment  between  the  same 
parties  or  their  privies,  on  the  same  subject  matter, 
whether  in  the  same  or  in  a  different  form  of  ac- 
tion, is  admissible  and  conclusive.  Therefore,  if 
P.  brings  an  action  for  the  price  of  goods  against 
'N,,  the  record  of  the  judgment  is  admissible  and 
conclusive  on  the  issue  of  property,  in  replevin  for 
the  same  goods,  brought  by  P.  against  a  purchaser 
under  I^. ;  and  this,  whether  the  judgment  be  for 
the  plaintiff  or  the  defendant  in  the  first  action. 
It  need  not  be   specially  pleaded,  but  under  the 

^  Mackinley  v.  M'Gregor,  3  Whart.  370.  Rowley  v.  Bigelow, 
12  Pick.  307.  Bufflngton  v.  Gerrish,  15  Mass.  156.  Mowrey  v. 
Walsh,  8  Cow.  238.  Knowles  v.  Lord,  4  Whart.  500.  Bond 
V.  Bronson,  30  P.  F.  S.  360. 


THE    TRIAL,  EVIDENCE,  ETC.  209 

general  plea  of  pi'operty  is  admissible  and  conclu- 
sive ;'  though  it  is  sometimes  held  that  to  be  con- 
clusive it  should  be  specially  pleaded  in  bar.^  And 
where  goods  have  been  taken  on  replevin  in  one 
State,  and  removed  by  the  plaintiff  to  another,  and 
the  defendant  in  the  original  suit,  or  one  claiming 
under  him,  seeks  to  regain  the  possession  of  the 
goods  by  a  counter  replevin  in  the  new  jurisdiction, 
the  record  of  the  prior  replevin  may  be  given  in 
evidence  under  the  plea  of  property,  without  being 
specially  pleaded,  and  will  entitle  the  defendant  to 
a  verdict.^  In  Lowry  v.  Hall,  C.  J.  Gibson  assigns 
as  one  reason  for  this  the  fact,  that  the  law  i*equires 
a  present  right  of  possession  to  support  a  replevin, 
and  argues  that  the  law  has  placed  the  present 
right  of  possession  with  him  to  whom  it  has  caused 
the  property  to  be  delivered.  Hall  v.  Lowry  is  not 
referred  to  by  judge  or  counsel  in  the  case  of  Lovett 
V.  Burkhardt,  in  which  the  contrary  rule  seems  to 
be  laid  down.^  Under  this  plea  the  defendant  will 
not  be  allowed  to  prove  that  he  has  made  advances 

'  Marsh  v.  Pier,  4  Rawle  273.  Penrose  v.  Green,  1  Miss. 
774.     Bower  v.  Tallman,  5  W.  &  S.  556. 

^  Cleaton  u.  Chambliss,  6  Randolpli  86.  Souter  v.  Bay  more, 
7  Barr  417. 

'  Lowry  v.  Hall,  2  W.  &  S.  129.  Morris  v.  De  Witt,  5  Wend. 
71.  Taylor  v.  Rojal  Saxon,  1  Wall,  Jr.  331.  But  see  Lovett 
V.  Burkhardt,  8  Wright  174. 


210  THE    TRIAL,  EVIDE:N^CE,  ETC. 

on  the  goods  as  factor,  in  order  to  establish  a  special 
property  in  them  by  way  of  lien.^ 

Where  the  property  has  been  delivered  to  the 
plaintiff,  and  the  jury  find  for  him,  they  should 
assess  the  damages  for  the  detention,  and  he  is 
entitled  to  compensation  for  any  deterioration  in 
value  of  the  goods  replevied,  while  they  were  in 
the  hands  of  the  defendant,^  and  also  for  his  time 
lost  and  expense  incurred  in  searching  for  his  pro- 
perty,'' and  to  the  hire  of  slaves,^  and  it  would 
seem  to  any  damage  which  he  can  prove  defen- 
dant's act  to  have  occasioned/  AYhere  the  pro- 
perty has  not  been  delivered  to  him,  the  jury  should 
also  find  the  value  of  the  property  at  the  time  the 
writ  issued.^  In  this  case  the  damages  for  detention 
are  usually  interest  on  the  value  from  the  time  of 
taking,  but  in  proper  cases  exemplary  damages  may 
be  given.^ 

1  Buckley  v.  Handy,  2  Miles  449. 

*  Gorden  u.  Jenney,  16  Mass.  465.  Noble  u.  Epperly,  6  Ind. 
468.     Russell  u.  Smith,  14  Kansas  366. 

'  Bennett  v.  Lockvvood,  20  Wend.  223.  Dorsey  u.  Gassawa^^, 
2  Bar.  &  Johns.  413. 

*  Gibbs  u.  Cruikshank,  8  Law  Rep.  Com.  Pleas  451. 
^  Brindle  v.  Adams,  2  Weekly  Notes,  5. 

«  M'Donald  v.  Scaife,  1  Jones  385.  Balsley  v.  Hoffman,  1 
Harris  603;  Schofield  v.  Ferrers,  10  Wright  438;  Jenkins  v. 
Steanka,  19  Wis.  126. 


THE    TRIAL,  EVIDEI^CE,  ETC.  211 

If  the  plaintiff  intends  to  take  a  verdict  under 
the  statute  17  Car.  II.,  he  must  see  that  the  jury 
find  distinctly  the  amount  of  the  rent  arrear,  and 
also  the  value  of  tJie  distress.  Both  branches  ai-e 
absolutely  necessary  to  a  judgment  on  the  verdict 
under  the  statute,  which  will  entitle  him  to  his 
execution  for  the  money;  the  neglect  will  not  de- 
prive him  of  the  common  law  judgment  of  retorno 
habendo  with  a  right  to  recover  against  the  sureties 
in  the  replevin  bond.^ 

The  verdict  for  the  defendant  is  simply  for  the 
defendant,  assessing  damages  for  the  unjust  caption 
and  detention  under  the  writ.  The  jury  should  not 
value  the  property  when  they  find  for  the  defendant,^ 
unless  some  statute  or  local  usage  allows  it,  as  is 
the  case  in  ^ew  Hampshire,  where  the  judgment 
of  retorno  habendo  seems  to  be  abolished.  And  in 
Delaware,  in  some  cases,  the  defendant  is  entitled 
to  recover  the  value  of  the  property  replevied  in 
damages.^ 

In  addition  to  cases  cited  under  note  6  on  previous  page,  see 
Herdic  v.  Young,  5  P.  F.  S.  176  ;  Craig  v.  Kline,  15  P.  F.  S. 
400;  Cable  v.  Dakin,  12  Wend.  172. 

^  See  post,  Ch.  XY.,  and  cases  there  cited. 

'  Easton  v.  Worthington,  5  S.  &  R.  132.  See  post,  213, 
"Judgment  in  Replevin." 

^  Clark  V.  Adair,  3  Harrington  113. 

15 


212  THE    TRIAL,    EVIDE:N^CE,    ETC. 

In  Michigan,  Tennessee,  and  Arkansas,  under 
their  statutes,  the  defendant  is  entitled  to  have  the 
value  of  the  goods,  and  damages  for  their  detention, 
found  by  the  jury.  In  Tennessee,  the  damages  are 
to  be  assessed  at  six  per  cent,  on  the  value  from 
the  time  of  taking.  In  Michigan,  damages  may  be 
given  to  any  amount  not  exceeding  fifty  per  cent. 

Where  the  goods  have  been  delivered  to  the 
plaintiff  in  replevin,  he  will  not  be  allowed  to  dis- 
continue, and  there  may  be  cases  in  which  the  same 
rule  would  be  adopted  where  the  goods  remained 
with  the  defendant.  The  avowant,  though  an  actor, 
cannot  discontinue.^  But  it  seems  the  plaintiff  is 
not  obliged  to  take  a  verdict,  but  may  suffer  a 
non-suit.^  If  he  does,  the  defendant  may  take  an 
assignment  of  the  bond.  The  defendant,  however, 
cannot  non-suit  the  plaintiff,  because  he  neglects 
to  have  his  case  put  down  for  trial  .^ 

^  Broom  v.  Fox,  2  Yeates  530.  Long  v.  Buckeridge,  1  Str. 
106,  112. 

'  Murgatroyd  v.  M'Clure,  4  Dall.  342.  Gibbs  v.  Bartlett,  2 
W.  &  S.  33.  Berghoff  v.  Heckwolf,  26  Mo.  511.  See  Lock- 
wood  V.  Perry,  9  Met.  440,  446. 

'  Jones  V.  Concannon,  3  T.  R.  661.  Barrett  v.  Forrester,  1 
Johns.  Cas.  247.     Poltz  v.  Curtis,  9  Wend.  497. 


CHAPTER  XI. 


OF    THE  JUDGMEISTT. 


The  judgment  in  replevin  is  a  matter  of  some 
nicety,  and  should  always  be  entered  under  the 
direct  supervision  of  counsel.  Where  the  property 
has  been  delivered  to  the  plaintiff  in  the  replevin, 
and  he  succeeds,  he  has  judgment  in  his  favor,  with 
damages  for  the  detention.  If  this  judgment  be 
u]3on  demurrer,  the  amount  of  the  damages  must 
be  ascertained  by  a  writ  of  inquiiy.  If  on  verdict, 
the  jury  assess  the  damages.^  The  value  of  the 
property  is  of  course  not  included.  The  plaintiff 
has  that  by  the  deliverance  to  him  under  the  writ.^ 
Compensation  for  time  lost,  and  expense  incurred 
in  searching  for  property  wrongfully  taken  or 
detained,  ought  to  be  included  in  the  sum  found,^ 
but  cannot  exceed  the  amount  claimed  in  the  decla- 
ration.^   In  proper  cases  punitory  damages  may  be 

'  Gilb.  Repl.  160.  Blackwell  v.  Acton,  38  Incl.  425.  Wood- 
burn  V.  Chamberlin,  IT  Barb.  446. 

'  Bennett  v.  Lockwood,  20  Wend.  223.  Mitchell  v.  Burcli, 
36  Ind.  529.     Hotchkiss  v.  Jones,  4  Ind.  260. 

'  O'Neal  V.  Wade,  3  Ind.  410. 


214  OF    THE    JUDGMENT. 

given.^  If  the  defendant  claims  property,  and  puts 
in  a  claim  property  bond,  by  which  the  delivery  of 
the  property  to  the  plaintiff  is  prevented,  and  the 
issue  of  property  is  found  in  favor  of  the  plaintiff, 
he  has  judgment  in  his  favor  for  the  value  of  the 
goods  which  the  jury  must  find,  and  damages  for 
the  detention.  And  such,  it  is  apprehended,  must 
be  the  judgment  ^or  the  plaintiff  in  all  cases  where 
the  goods  have  not  been  delivered  to  him  by  the 
sheriff  in  the  first  instance.^  In  Indiana,  if  the 
verdict  is  for  the  plaintiff,  the  judgment  is  in  the 
alternative  that  the  plaintiff  recover  the  possession 
of  the  property,  or  the  value  thereof  in  case  a 
delivery  cannot  be  had,  together  with  the  damages 
assessed  for  the  detention.'^ 

If  the  plaintiff  declared  in  the  detinet,  and  the 
defendant  appears  and  makes  default,  the  plaintiff 
shall  have  judgment  to  recover  all  in  damages,  as 
well  the  value  of  the  chattels  as  damages  for  taking 

^  Cases  cited  on  pages  210,  211 ;  Cable  v.  Dakin,  20  Wend. 
172;  Hopkins  v.  Hopkins,  10  John.  378. 

^  Gilb.  Repl.  126.  Bro.  Abr.  Repl.  15,  p.  208.  Easton  v. 
Wortbington,  5  S.  &  R.  130.  Etter  v.  Edwards,  4  Watts  68. 
Moore  v.  Slienk,  3  Barr  20.  Philips  v.  Harriss,  3  J.  J.  Marshall 
121.  Fisher  t;.  Whoollerj-,  1  Casey  197.  Frazer  v.  Frederick's, 
4Zabr.  162. 

3  Baler  v.  Scott,  26  Ind.  202.  Thompson  v.  Eagleton,  33 
Ind.  300. 


OF    THE    JUDGMENT.  215 

them/  And  this,  it  is  said,  is  a  shorter  way  than 
to  sue  a  withernam  and  capias  for  a  return  of  the 
beasts.^ 

The  186th  (211  new  number,  Part  III.,  eh.  iv.) 
section  of  the  Code  of  Procedure  in  ^ew  York 
seems  to  contemplate  a  judgment  of  retorno  habendo 
in  favor  of  the  plaintiff  in  such  a  case,  and  the  Re- 
vised Statutes,  Part  III.,  title  xii.,  ch.  viii.,  §  13, 
jDrovide  for  the  entry  of  the  judgment. 

The  judgment  for  the  defendant  at  the  common 
law  is  pro  retorno  habendo.  And,  it  is  said,  if  the 
defendant  avows,  and  hath  judgment,  he  shall  have 
return  of  the  beasts  awarded ;  because  the  avowry 
allows  the  caption,  but  avoids  the  injustice  thereof, 
by  showing  he  had  good  cause  of  takiug  such  dis- 
tress ;  and,  consequently,  if  such  cause  of  caption 
be  approved  of  by  the  court,  they  mustf  in  justice, 
return  the  pledge  to  the  avowant.^  But  on  tender 
or  payment  of  damages,  satisfaction  would  be  en- 
tered on  the  judgment,  or  the  plaintiff  might,  after 
the  goods  returned,  bring  detinue  on  tender  of 
damages,  because  notwithstanding  the  judgment 
for  return  irreplevisable,  the  goods  still  remain  as 

^  Fitz.  N.  B.  159,  c.  Tth  edit.  Easton  v.  Worthington,  5  S. 
&  R.  131.  Marsh  v.  Pier,  4  Rawle  290.  ITosack  v.  Weaver,  I 
Yeates  478.     Hardy  v.  Metzgar,  2  Yeates  347. 

■  Gilb.  Repl.  126.  '  Gilb.  Repl.  167. 


216  OF    THE    JUDGMENT. 

pledge :  and  if  the  defendant  refuse  to  make  resti- 
tution of  the  pledge,  upon  tender  of  the  rent,  his 
detention  then  is  unlawful.^ 

If  the  goods  have  not  been  delivered  to  the 
plaintiff,  and  the  defendant  has  judgment,  it  shall 
be  for  costs  only. 

In  Delaware,  on  an  avowry  for  rent,  the  jury 
find  the  sum  due  for  rent  arrear,  and  judgment  is 
given  for  any  sum  so  found  or  ascertained,  as  debt, 
with  costs  of  suit ;  and  like  execution  is  had  as  on 
judgments  for  debt  i"^  in  that  State  interest  is  not 
allowed  on  rent  arrear.'^ 

Where  the  goods  have  not  been  taken  by  way 
of  distress,  but  the  action  is  founded  on  the  right 
of  property,  and  the  goods  have  been  delivered  on 
the  replevin  to  the  plaintilf,  and  there  is  a  verdict 
for  the  defendant,  he  shall  have  judgment  pro 
retorno  habendo,  without  an  avowry,  because  the 
finding  of  property  in  the  defendant  destroys  all 
right  in  the  plaintiff,  and  if  he  have  no  right  he 
ought  to  have  no  benefit  from  his  unjust  com- 
plaint ;  and,  thei-efore,  the  court  award  restitution 
to  the  defendant,  out  of  whose  possession  the  goods 

'  Gilb.  Repl.  172.     Easton  v.  Worthington,  5  S.  &  R.  132. 

^  Clark  V.  Adair,  3  Harring.  113. 

^  Caldwell  v.  Cleadon,  3  Harring.  420. 


OF    THE    JUDGMEJJ^T.  217 

were  taken  :^  and  so  of  the  judgment  on  all  pleas 
that  disaffirm  property  in  the  plaintiff.  If  the  jury 
find  the  value  of  the  property,  it  is  merely  sur- 
plusage, and  may  be  disregarded  in  entering  the 
judgment,  which  should  be  a  judgment  of  retorno 
habendo.^  But  if  the  issue  found  for  the  defendant 
is  on  a  j^lea  of  non  detinet  he  will  not  be  allowed  a 
retorno  habendo,  unless  he  shows  title  or  a  right  of 
possession  in  himself  or  some  other  person.'^  But 
if  the  right  of  property  is  put  in  issue  by  the 
defendant,  and  found  for  him,  the  courts  of  Illinois 
hold  the  award  of  a  retorno  habendo  to  be  a  matter 
of  course,  whether  prayed  for  by  the  plea  or  not/ 
Under  the  I^ew  York  statutes,  the  defendant  who 
succeeds  in  the  action  must  take  a  judgment  in  the 
alternative  for  a  return  of  the  property,  and  for  the 
value  in  case  a  return  cannot  be  had.' 

^  Broom  et  al.  v.  Fox,  2  Yeates  530.  Easton  v.  Worthington, 
5  S.  &  R.  132.  Moore  v.  Shenk,  3  Barr  10.  Matlock's  Adm. 
V.  Straughn,  21  Ind.  128. 

'  Easton  v.  Worthington,  5  S.  &  R.  132. 

^  Johnson  v.  Howe,  2  Gihn.  342. 

*  King  V.  Ramsay,  13  III.  619,  and  see  Bonrk  v.  Riggs,  38 
111.  320.  Hanford  v.  Obrecht,  49  III.  146.  Underwood  u.  White, 
45  111.  43T. 

^  Dwight  V.  Enos,  9  N.  Y.  470.  Fitzhngh  u.  Wyman,  9  N. 
Y.  559.  Seaman  v.  Luce,  23  Barb.  240.  Revised  Statutes  N. 
York,  Part  III.,  title  xii.,  ch.  viii.,  §§  17,  18,  and  19. 


218  OF    THE    JUDGMENT. 

But,  according  to  Sir  Matthew  Hale  in  his  Com- 
mentary on  Fitzherbert,  the  jury  would  have  done 
right  in  valuing  the  property,  if  the  beasts  had  died 
after  the  caption,  or  were  sold,  so  that  the  defendant 
could  not  have  a  return,  in  which  case  he  would  be 
entitled  to  recover  all  in  damages.^  In  a  case  in 
Delaware  in  w^iich  corn  had  been  replevied,  it  was 
held  this  was  the  true  course  to  pursue  on  a  verdict 
for  the  defendant  on  a  plea  of  property ;  the  article 
being  perishable  in  its  nature,  the  presumption, 
nnless  the  contrary  was  shown,  was,  that  it  could 
not  be  delivered  on  the  retorno  habendo,  and  there- 
fore judgment  should  be  given  for  the  defendant 
for  its  value.'^ 

Under  the  statutes  of  Kew  Hampshire  there  is 
no  judgment  of  retorno  habendo ;  but  on  a  verdict 
for  defendant  the  jury  are  required  to  find  the 
value  of  the  property  in  damages,  for  which  the 
defendant  is  entitled  to  judgment  and  execution 
in  the  ordinary  form.^  A  like  judgment  for  the 
defendant  is  allowed  by  the  statutes  of  Maine,  Ver- 
mont, Massachusetts,  ^ew  Yoi-k,  Kentucky,  and 
Arkansas  sometimes  in  the  discretion  of  the  court 
and  sometimes  of  the  defendant. 

^  Fitz.  N.  B.  150,  note  c.  Hale's  edition. 
^  Clark  V.  Adair,  3  Harring.  113. 
'  Bell  V.  Bartlett,  7  N.  Hanip.  178. 


OP    THE    JUDGMENT.  219 

The  law,  as  held  in  Delaware,  has  some  advan- 
tages over  that  of  Pennsylvania,  as  laid  down  in 
Easton  v.  Worthington,  if  the  doctrine  of  that  case 
is  to  be  considered  as  restricting  the  judgment  for 
the  defendant,  in  all  cases,  to  a  judgment  of  retorno 
habendo.  The  Delaware  law  avoids  the  delay  and 
expense  incident  to  a  proceeding  on  the  bond, 
where  the  plaintiff  has  the  means  of  satisfying  the 
judgment:  a  great  point,  as  the  judgment  of  re- 
torno habendo  is  pi-actically  of  little  use  in  obtaining 
a  restitution  of  the  property  in  specie,  and  after  a 
proceeding  on  the  bond,  a  sum  for  damages  is  all 
that  the  defendant  receives. 

If  the  defendant,  by  his  pleading,  admits  the 
property  to  be  in  the  plaintiff,  he  cannot  have  a 
judgment  of  retorno  habendo  without  an  avowry 
or  cognizance,  or  a  suggestion  in  the  nature  of  an 
avowry  or  cognizance,  because  he  leaves  the  plain- 
tiff a  right  to  retain  his  goods,  when  he  neither 
denies  the  property  to  be  in  the  plaintiff,  nor  shows 
any  cause  why  he  should  take  them  as  a  pledge.^ 
If  the  tenant  offers  his  rent  at  the  time  of  the  dis- 
tress taken,  or  before  impounding,  and  the  lord  re- 

>  Gilb.  Repl.  168.  Wilk.  Repl.  92.  Simpson  v.  M'Farland, 
18  Pick.  427.  Whitwell  v.  Wells,  24  Pick.  25.  Bonner  v.  Cole- 
man, 3  B.  Munroe  464. 


220  OF    THE    JUDGMENT. 

fuse  to  accept  it,  he  shall  never  after  have  return  of 
the  beasts,  though  the  rent  be  in  arrear ;  because 
the  distress  is  but  a  pledge  for  the  rent,  and  when 
the  rent  is  offered,  the  pledge  ought  to  be  restored ; 
consequently,  the  court  will  never  award  the  return 
of  the  pledge  to  the  lord,  which  he  ought  to  have 
restored  to  the  plaintiff  before  the  replevin  was 
taken  out/ 

Where  the  defendant  has  removed  the  goods,  so 
that  they  are  not  taken  on  the  replevin,  or  where 
he  retains  them  by  a  claim  of  property,  he  is  not 
entitled  to  a  judgment  of  retorno  habendo.  That 
judgment  has  no  existence  except  in  a  case  where 
the  goods  have  been  replevied  and  the  verdict  is  for 
the  defendant.  If  such  judgment  is  entered,  it  is 
erroneous,"  and  a  remittitur  of  the  damages  will  not 
cure  the  error,  as  that  is  no  release  of  the  judgment 
for  a  return.^ 

By  the  statute  7  Henry  YIII.,  ch.  4,  the  defen- 
dant in  replevin  is  entitled  to  damages  for  the  un- 
just detention ;  when  the  cause  comes  to  trial  the 
jui-y  assess  these  damages,  and  they  form  part  of 

1  Gilb.Repl.  169. 

'  Moore  v.  Shenk,  3  Barr  20.  Harrod  v.  Hill,  2  Dana  165. 
Schofield  V.  Ferrers,  10  Wright  438. 


OF    THE    JUDGMENT.  221 

their  verdict.^  When  the  judgment  is  by  default, 
a  writ  of  inquiry  must  be  issued  to  ascertain  the 
damages  and  costs,  upon  the  return  whereof,  final 
judgment  is  entered  up  for  the  defendant  to  recover 
as  well  the  damages  and  costs  assessed  by  the  jury 
as  the  costs  adjudged  by  the  court,^  and  this  is  in 
addition  to  the  retorno  habendo  for  the  goods.^ 

In  replevin  for  several  articles  where  the  plea  is 
propert}^,  and  the  jury  find  property,  in  some  of 
the  articles,  to  be  in  the  plaintiff,  and  in  the  others 
to  be  in  the  defendant,  assessing  to  each  the  proper 
damages ;  separate  judgments  must  be  entered  in 
favor  of  each."  If  the  articles  were  delivered  to 
the  plaintiff,  the  judgment  in  his  favor  will  be  the 
ordinary  judgment  for  the  plaintift*  and  will  cover 
the  damages  found  for  the  caption  and  detention 
of  the  articles,  as  to  which  the  property  has  been 
found  for  him.  The  judgment  for  the  defendant 
will  be  a  judgment  of  retorno  habendo  for  the 
articles,  the  property  of  which  is  found  in  him, 
together  with  damages  for  their  caption  and  deten- 
tion on  the  writ.^ 

1  1  Wms.  Saund.  195,  n.  3.    Smith  v.  Auvand,  10  S.  &  R.  92. 

'  Clark  V.  Keith,  9  Ohio  R.  12.  Powell  v.  Hinsdale,  5  Mass. 
343.     Poor  V.  Woodbuni,  25  Vt.  334. 

'  Winnard  v.  Foster,  Lutw.  1190.  Clark  v.  Keith,  9  Ohio  R. 
72.     Powell  V.  Hinsdale,  5  Mass.  343. 


222  OF    THE    JUDGMENT. 

The  following  observations,  on  this  snbject,  are 
translated  from  Lutwich,  page  1197,  "  I  find  that 
there  is  great  variety,  and  sometimes  (as  it  appears) 
some  contrariety  in  the  jndgments  in  replevin, 
when  part  is  found  by  verdict,  or  adjudged  on  de- 
murrer for  the  plaintiff,  and  part  for  the  defendant. 
As  the  precedents  which  I  have  met  with  are  in 
two  books,  in  private  hands,  and  it  may  be  of 
service  to  others  to  have  an  account  of  them,  I 
insert  a  brief  note  of  them.  More  especially,  as  I 
find  no  similar  judgments  in  any  other  books  of 
precedents. 

In  a  book  printed  in  1655,  called  judgments,  &c., 
or,  commonly,  the  First  Book  of  Judgments,  page 
115,  there  is  a  precedent,  Trin.  9,  Car.  I.  Kot.  1360, 
where,  in  a  replevin  against  A.  and  B.,  verdict  was 
obtained  by  the  jDlaintiff  against  A.,  and  damages 
and  costs  taxed,  and  B.  was  acquitted  of  the 
caption,  and  damages  and  costs  taxed  for  him, 
and  judgment  was  given  for  the  plaintiflP  for  his 
damages,  and  costs  taxed  by  the  jury,  and  the 
plaintiff  was  fined  as  to  the  defendant  B.  But  no 
judgment  for  damages  or  costs  was  given  for  him, 
because,  by  the  law,  no  such  damages  and  costs  are 
allowed. 

In  the  same  book,  page  220,  is  another  precedent. 


OF    THE    JUDGMENT.  223 

Trill.  11,  Car.  I.  Rot.  1293,  where  property  in  a 
heifer,  part  of  the  chattels  taken,  was  found  to  be 
in  defendant,  and  damages  and  costs  taxed  by  the 
jury  for  him.  And  the  other  issues  were  found 
for  the  plaintiff,  and  damages  and  costs  taxed  for 
him.  But  no  regard  was  had  to  the  damages  and 
costs  taxed  by  the  jury  for  the  heifer,  because  such 
damages  and  costs  are  not  allowed  by  the  law,  and 
the  jDlaintiff  had  judgment  for  his  damages,  and 
costs  taxed  for  him,  &c.  And  the  defendant  had 
judgment  given  for  him  to  recover  his  damages,  by 
reason  of  the  premises,  and  in  such  sum,  by  the 
discretion  of  the  justices,  to  the  defendant  on  his 
request.  And  it  was  sustained,  according  to  the 
form  of  the  statute,  and  so  adjudged  by  the  court, 
which  (as  it  seems)  is  to  be  intended  of  the  statute 
4  Jac.  I.,  ch.  3,  2  Cro.  520.  Samuel  and  Hodder's 
case,  p.  204. 

And  in  another  book  called  A  Second  Book  of 
Judgments,  &c.,  p.  204,  Ko.  9,  there  is  a  precedent 
where  judgment  was  given  for  the  plaintiff  for 
damages  and  costs  taxed  by  the  jury,  when  the 
property  of  part  of  the  goods  was  found  to  be  in 
the  plaintiff  as  administrator,  and  for  the  residue, 
that  the  jDroperty  was  in  the  defendant,  and  for  this 
residue  the  plaintiff  was  amerced,  and  the  defendant 
acquitted.     But  no  return  was  adjudged  to  him,  or 


224  OF    THE    JUDGMENT. 

damages  and  costs  given  to  him,  but  it  does  not 
appear  whether  this  judgment  was  before  or  since 
the  statute  4  Jac.  I.,  ch.  3. 

And  in  the  same  book,  page  210,  'No.  28,  is 
another,  Hill.  14  Ehz.,  Rot.  1502,  where  an  issue, 
as  to  part  of  the  goods,  was  taken  on  non  cepit, 
and  another  issue  as  to  the  residue ;  and  the  issue 
on  non  cepit  was  found  for  the  plaintiif,  and  the 
other  issue  for  the  defendant;  and  several  judg- 
ments were  given  for  each  for  the  damages  and 
costs  assessed  by  the  jury,  before  the  Stat.  4  Jac. 
C.  3. 

And  on  the  same  page,  No.  29,  Pach.  36  Eliz., 
Rot.  1316,  there  is  a  precedent  where  an  avowry 
was  for  a  rent  and  an  amercement,  and  the  verdict 
was  for  the  defendant,  as  to  the  rent^  and  for  the 
plaintiif  as  to  the  amercement;  and  judgment  w\as 
given  that  the  plaintiff  should  take  nothing  as  to 
the  rent,  and  that  the  defendant  should  be  amerced 
as  to  the  amercement,  and  that  the  defendant  should 
have  a  return,  and  his  damages  assessed  by  the 
jury ;  but  no  damages  or  costs  were  given  to  the 
plaintiif. 

In  the  same  book,  page  211,  No.  31.  There  is  a 
precedent,  Mich.  43  and  44  Eliz.,  Rot.  918,  betweeu 


or    THE    JUDGMENT.  225 

Parsham  v.  Norton,  in  which  a  joint  avowry  was 
made  for  the  taking  of  all  the  beasts,  for  10s.  for 
an  amercement,  12s.  Id.  for  rent,  and  24s.  2d.  for 
relief;  and  for  the  relief  and  amercement  two 
several  demurrers  were  joined,  and  an  issue  taken 
as  to  the  rent ;  and  on  the  demurrer  as  to  the 
amercement  judgment  was  for  the  plaintiff.  And 
as  to  the  relief  for  the  defendant,  and  he  had  judg- 
ment for  a  return  as  to  the  24s.  for  relief;  and  the 
plaintiff  recovered  no  costs  or  damages,  because  the 
avowry  was  joint,  and  the  defendant  had  cause  of 
distress. 

And  in  the  same  book,  page  215,  'No.  40,  Trin. 
41  Eliz.,  Rot.  1812,  where  two  several  avowries 
were  made  for  two  several  causes,  one  for  an 
amercement  in  a  court  leet,  the  other  for  another 
cause,  and  the  issue  on  the  amercement  was  found 
for  the  avowant,  and  it  was  adjudged  that  he 
should  have  a  return  of  his  goods  taken  on  the 
amercement,  but  no  damages  and  costs,  because 
they  were  not  due  by  the  statute  on  an  avowry  for 
an  amercement  in  a  court  leet.  The  other  issue 
was  found  for  the  plaintiff,  and  he  had  judgment 
for  his  costs  and  damages  assessed  by  the  jury. 

IS^^.  B. — The  judgment,  in  the  principal  case  of 
"Winnard  v.  Foster,  for  the  plaintiff  and  defendant 


226  OP    THE    JUDGMENT. 

to  have  several  costs  is  different  from  that  of  any 
of  the  precedents  above  mentioned,  because  the 
avowry  is  joint,  and  a  joint  issue  taken  as  to  the 
propei'ty  in  all  the  goods,  and  as  to  ]Dart,  the  pro- 
perty was  found  in  defendant,  and  as  to  part,  in 
plaintiff." 

By  the  17  Charles  II.,  ch.  7,  it  is  enacted  that 
"Wherever  the  plaintiff  in  replevin,  upon  a  dis- 
tress for  rent,  shall  be  non-suit  before  issue  joined 
in  any  court  of  record,  the  defendant  making  a 
suggestion,  in  nature  of  an  avowry  or  cognizance 
for  the  rent  in  arrear,  to  ascertain  the  court  of  the 
cause  of  the  distress — the  court,  upon  his  prayer, 
shall  award  a  writ  to  the  sheriff,  to  inquire  of  the 
sum  in  arrear,  and  the  value  of  the  goods  or  cattle 
distrained,  and  that  upon  the  return  of  such  inqui- 
sition, the  defendant  shall  have  judgment  to  recover 
against  the  plaintiff  the  arrearages  of  rent,  in  case 
the  goods  or  cattle  distrained  shall  amount  unto 
that  value ;  and  in  case  they  shall  not  amount  to 
that  value,  then  so  much  as  the  value  of  the  goods 
or  cattle  distrained  shall  amount  unto  with  his  full 
costs  of  suit;  and  shall  have  execution  for  the  same 
by  fieri  facias,  elegit,  or  otherwise.'*  And  by  the 
same  statute,  the  like  proceeding  may  be  had  where 
judgment  is  given  for  the  avowant,  or  for  him  that 
maketh  cognizance  for  any  kind  of  rent.    And  it  is 


OF    THE    JUDGMENT.  227 

thereby  further  enacted,  that  "in  case  the  plaintiff 
sliall  be  non-suit  after  cognizance  or  avowry  made 
and  issue  joined,  or  if  the  verdict  shall  be  given 
against  the  plaintiff,  then  the  jurors  that  are  im- 
panelled to  inquire  of  such  issue,  shall,  at  the  prayer 
of  the  defendant,  inquire  concerning  the  sum  in  ar- 
rear,  and  the  value  of  the  goods  or  cattle  distrained. 
And  thereupon  the  avowant,  or  he  that  maketh 
cognizance,  shall  have  the  like  judgment,"  &c., 
as  before.^  Under  this  statute  the  defendant  or 
avowant  is  still  entitled  to  his  judgment  of  retorno 
habendo,  for  the  statute  has  not  altered  the  judg- 
ment at  common  law,  but  has  only  given  a  further 
remedy  to  the  avowant.  When  the  jury  who  try 
the  issue  omit  to  inquire  of  the  rent  in  arrear,  or 
of  tht  value  of  the  goods,  pursuant  to  the  statute, 
no  w^rit  of  inquiry  can  be  afterwards  awarded  to 
supply  the  omission.^ 

If  the  jury  proceed  under  the  act,  they  must  not 
only  find  the  amount  of  the  rent,  but  the  value  of 
the  goods.  They  must  find  both,  for  the  act  must 
be  strictly  complied  with.^     If  through  mistake  or 

'  Gilb.  Repl.  163,  164. 

^  Gilb.  Repl.  165.  1  Lev.  255.  1  Salk.  205.  Cas.  Temp. 
Hardw.  297,  298.  1  Wms.  Sauncl.  195,  b.  u.  3.  Rees  v.  Mor- 
gan, 3  T.  R.  349.     Williams  v.  Smith,  10  S.  &  R.  206. 

'  Williams  u.  Smith,  10  S.  &  R.  206. 

16 


228  OF    THE    JUDGMENT. 

otherwise  any  of  the  requirements  of  the  statute 
are  omitted,  so  that  the  defendant  cannot  take 
judgment  under  it,  he  is  still  entitled  to  his  judg- 
ment of  retorno  habendo  at  common  law.^ 

We  are  told  by  Kennedy,  Justice,  in  Quinn  v. 
Wallace,  6  Wharton  458,  that  this  statute  has 
never  been  in  force  in  Pennsylvania,  either  by 
adoption  or  otherwise.  The  dicta  of  Gibson,  C.  J., 
in  Kemmel  v.  Kint,  2  Watts  431,  and  of  Duncan, 
J.,  in  WiUiams  v.  Smith,  10  S.  &  R.  206,  would 
seem  to  imply  the  contrary.  The  statute  is  not 
reported  by  the  judges.  Ever  since  the  decision 
in  Albright  v.  Pickle,  4  Yeates  264,  however,  the 
jury  has  been  allowed,  in  an  issue  of  no  rent  in 
arrear,  to  find  the  amount  of  rent  in  arrear,  and 
also  to  value  the  goods.  This  is  the  prevailing 
practice  in  the  city  and  county  of  Philadelphia.^ 
Whether  the  statute,  as  such,  is  in  force  or  not,  its 
provisions  seem  to  be  recognized  as  part  of  the 
common  law  of  Peimsylvania. 

Both  parties  in  replevin  are  entitled  to  rules  to 
declare  and  plead,  &c.,  as  in  other  actions.     The 

1  Gilb.  Repl.  165.  1  Lev.  255.  1  Salk.  205.  Cas.  Temp. 
Hardw.  29Y,  298.  1  Wins.  Saund.  195,  b.  n.  3.  Rees  v.  Mor- 
gan, 3  T.  R.  349.  Williams  v.  Smith,  10  S.  &  R.  206.  Gamon 
V.  Jones,  4  T.  R.  509.      Gibbs  v.  Bartlett,  2  W.  &  S.  29. 

^  Howard  v.  Johnson,  1  Ash.  58. 


OF    THE    JUDGMEI^T.  229 

judgment  by  default  for  the  plaintiflP,  where  the 
goods  have  been  delivered  to  him,  is  for  damages 
for  the  detention  to  be  ascertained  by  writ  of  in- 
quiry. "Where  tlie  goods  have  not  been  delivered, 
it  is  for  the  value  of  the  goods  and  damages  for  the 
detention  to  be  ascertained  in  the  same  way. 

The  judgment  by  default  in  favor  of  the  defen- 
dant was  at  common  law  a  judgment  of  retorno 
habendo,^  to  which  the  statute  7  Hen.  YIII.,  ch.  4, 
added  damages  for  the  unjust  caption  and  detention 
under  the  writ.  The  judgment  of  retorno  habendo 
is,  that  the  plaintiff  take  nothing  by  his  writ,  but 
that  he  and  his  pledges  to  prosecute  be  in  mercy, 
and  that  the  defendant  have  a  return  of  the  goods, 
&c.,  and  that  he  recover  his  damages  on  occasion 
of  the  premises  according  to  the  form  of  the  statute, 
followed  by  an  award  of  a  writ  1st,  de  retoi-no 
habendo,  and  2d,  to  inquire  of  the  damages ;  or 
the  defendant  may  enter  remittitur  damna  for  the 
damages,  and  by  the  final  judgment  on  those 
statutes,  claim  his  costs  only.^  The  statute  7  H. 
yill.,  ch.  4,  is  reported  by  the  judges  to  be  incor- 
porated in  Pennsylvania. 

The  statute  17  Car.  II.,  ch.  7,  applies  to  four 
^  Comyn  Dig.  Pleader,  3  K.  30.  ^  Wilk.  Repl.  72. 


230  OF  THE  judgme:n-t. 

cases.  1st.  Where  the  plaintiff  shall  be  non-suit 
before  issue  joined,  in  which  case  the  statute, 
except  where  the  non  pros,  is  after  avowry  or  cog- 
nizance, requires  a  suggestion  in  the  nature  of  an 
avowry  or  cognizance.  This  is  usually  made  after 
judgment.^  After  such  judgment  and  suggestion, 
a  writ  of  inquiry  issues,  to  inquire  of  the  sum  in 
arrear  at  the  time  of  the  distress,  and  of  the  value 
of  the  goods  distrained;  and  after  the  writ  of 
inquiry  is  executed,  the  defendant  is  entitled  to  a 
final  judgment,  to  recover  the  arrearages  of  such 
rent,  if  the  goods  be  of  that  value,  or  to  the  value 
of  the  goods,  if  less  than  the  rent.  2d.  When  the 
plaintiff  shall  be  non-suit  after  cognizance  or 
avowry,  and  issue  joined.  3d.  When  there  shall 
be  a  verdict  against  the  plaintiff,  the  jury  im- 
panelled to  try  the  issue,  and  they  only,  at  the 
prayer  of  the  defendant,  may  in  this  and  the  pre- 
ceding case,  where  the  non-suit  is  at  the  trial, 
inquire  of  the  arrears  of  rent,  and  the  amount  of 
goods,  and  find  the  same  by  their  verdict.  The 
judgment  is  in  both  cases  for  the  arrears  of  rent, 
or  so  much  thereof  as  the  goods  distrained  shall 
amount  to.^  4:th.  Where  there  shall  be  judgment 
on  demurrer  against  the  plaintiff,  there  must  be  a 

'  Wilk.  Repl.  68.     Comyn  Dig.  Pleader,  3  K.  30. 
'  Wilk.  Repl.  69.     Comyn  Dig.  Pleader,  3  K.  30. 


OP    THE    JUDGMENT.  231 

writ  of  inquiry;  but  the  inquiry  need  not  be  of 
the  arrears  of  rent,  but  of  the  goods  only,  for  the 
statute  directs  the  writ  of  inquiry  to  be  awarded 
to  inquire  only  of  the  value  of  the  distress ;  the 
judgment  in  such  case  is  to  recover  the  arrears  of 
rent,  if  the  goods  or  cattle  amount  to  that  value; 
if  not,  the  amount  of  the  goods  or  cattle  distrained. 
The  costs  in  all  these  cases  are  stated  in  the  statute 
to  be  full  costs  of  suit. 

If  there  is  a  service  of  the  writ,  and  the  defen- 
dant does  not  appear  within  the  regular  time,  there 
will  be  judgment  for  the  plaintiff  by  default  ;^  or 
the  better  practice  is  to  enter  a  common  appear- 
ance for  the  defendant,  and  rule  him  to  plead.^ 

The  statute  in  Maryland  provides  that  if  the 
defendants  shall  be  returned  summoned,  and  shall 
not  appear  in  person  or  by  attorney  on  or  before 
the  fourth  day  of  the  next  term  to  that  at  which 
the  return  shall  be  made,  the  court  are  authorized 
and  required  to  enter  up  judgment  for  the  plaintiff, 
for  the  property  replevied  and  nominal  damages 


7 


^  James  v.  Mood}^,  1  H.  Bl.  281. 

^  See  ante,  pages  134, 135,  and  post,  Chapter  XY.     Crofut  o 
Chichester,  3  Phila.  45Y. 
'  1  Dorsej^'s  Laws  of  Maryland  821. 


232  or    THE    JUDGMEN'T. 

If  there  be  error  both  in  the  declaration  and  in 
the  avowry,  the  defendant  shall  not  have  judgment 
for  a  return.^ 

The  effect  of  the  judgment  for  the  plaintiff  in 
replevin,  where  the  goods  have  not  been  delivered 
to  him,  and  where  no  claim  property  bond  has  been 
filed,  but  where  he  has  obtained  a  verdict  in  dam- 
ages for  their  value,  is  perhaps  not  settled  in 
Pennsylvania.^ 

The  doctrine,  in  England,  is  asserted  to  be,  that 
the  recovery  of  a  judgment  in  trespass,  trover,  or 
replevin,  for  the  value  of  a  specific  article,  changes 
the  property  and  vests  it  in  the  defendant,  without 
regard  to  the  satisfaction  of  the  judgment.^  The 
dictum,  in  Brown  v.  Watton,  in  which  the  doctrine 
is  asserted  as  regards  the  judgment  in  trespass,  is 
opposed,  by  what  is  said  in  Jenkins'  Centuries,  to 

^  Allen  V.  Darley,  1  Show.  99. 

2  Taylor  v.  The  Royal  Saxon,  1  Wall.  Jr.  317.  Fisher  v. 
Whoollery,  1  Casey  198.     Lovett  v.  Burkhardt,  8  Wright  174. 

3  Brown  v.  Watton,  Cro.  Jac.  73.  Adams  v.  Broughton,  Stra. 
1078,  Andr.  18.  Moor  v.  Watts,  1  Ld.  Ra}^  613.  Morris  v. 
Robinson,  3  B.  &  C.  196,  per  Littledale,  J.  Key  worth  u.  Hill,  3 
B.  &  A.  685,  per  Holroj^d,  J.  King  v.  Houre,  13  M.  &  W.  494; 
but  see  Brinsmead  v.  Harrison,  Law  Rep.  Com.  Pleas,  Vol.  6, 
p.  584.  Ex  parte  Drake  in  re,  Ware.  Law  R.  Ch.  D.,  Yol.  5, 
871. 


OF    THE   JUDGMENT.  233 

wit,  "A.  in  trespass  against  B.  for  taking  a  horse, 
recovers  damages,  by  this  recovery  and  execution 
done  thereon,  the  property  of  the  horse  is  vested  in 
B.,  sohitio  pretii  emptionis  loco  habetur."^  And 
the  Touchstone  is  to  the  same  purpose,  "where 
one  doth  take  my  goods  as  a  trespasser,  and  I  re- 
cover damages  for  them  upon  a  suit  in  law;  in  this 
case  the  law  doth  give  him  the  property  of  the 
goods,  because  he  hath  paid  for  them,^'''  which  could 
only  be  if  satisfaction  were  had  upon  the  judgment, 
which  would  seem  to  be  the  meaning  of  "  recover 
damages."  In  Adams  v.  Broughton,^  and  in  Brown 
V.  Watton,^  the  doctrine  is  applied  to  trover ;  but 
these  cases  are  so  brief  as  to  leave  the  reader  in 
doubt,  whether  there  was  not  satisfaction  of  the 
judgment  in  both  instances.  The  report  in  Cro. 
J.  indeed  makes  one  of  the  judges  say,  that  the 
judgment  changes  the  property,  but  it  would  seem 
that  the  defendant  in  the  first  suit  was  actually  in 
execution,  which  was  no  doubt  a  satisfaction.  The 
report  in  Yelverton,  it  is  true,  asserts  that  the 
judgment  is  conclusive,  but  apparently  on  other 
grounds  than  a  change  of  property.  Metcalf,  in  a 
note  to  this  case,  in  his  edition  of  Yelverton,  has 

^  Jenk.  4  Cent,  case  88. 

^  Sbep.  Touch.  Ch.  9,  of  a  gift,  227. 

^  Strange  1078.     Antlr.  18. 

*  Yelv.  67,  68.     Cro.  Jac.  73. 


234:  OF    THE    JUDGMEI^T. 

shown  clearly  that  the  reasoning  in  that  case  is 
fallacious.  In  Moor  v.  Watts,^  Lord  Holt  is  made 
to  say,  "  In  replevin  for  cattle  with  adhue  detinet, 
damages  given  for  the  cattle  will  change  the  pro- 
perty ;"  but  in  the  report  of  the  same  case  in  12th 
Modern,  the  important  Avords, "  on  payment  thereof," 
occur  between  the  words  "cattle"  and  "will :"  thus, 
"damages  given  for  the  cattle  on  payment  thereof 
will  change  the  property." 

In  Drake  v.  Mitchell,^  a  case  indeed  arising  ex 
contractu,  Lord  Ellenborough  said  that  he 'always 
understood  the  principle  of  transit  in  rem  judicatam 
to  relate  only  to  the  particular  cause  of  action  in 
which  the  judgment  was  recovered,  operating  as  a 
change  of  remedy,  from  its  being  of  a  higher  nature 
than  before;  and  that  a  judgment  recovered,  in 
any  form  of  action,  was  still  but  a  security  for  the 
original  cause  of  action,  until  it  was  made  produc- 
tive in  satisfaction  to  the  party;  and,  until  then,  it 
would  not  operate  to  change  any  other  collateral 
concurrent  remedy  which  the  party  might  have. 
This  is  now  the  recognized  law  in  the  courts  of 

^  1  Ld.  Ray.  614.  12  Mod.  428.  In  Knowles  v.  Lord,  4 
Whart.  505,  Judge  Sergeant  seems  to  adopt  what  is  said  in 
Lord  Raymond  ;  but  the  point  was  not  involved,  and  does  not 
seem  to  have  been  argued. 

2  3  East  251. 


OF    THE    JUDGMENT.  235 

the  United  States,  l^Tew  York,  and  Maryland.^  And 
Kent  says,  it  is  the  more  reasonable,  if  not  the 
more  authoi-itative  conclusion  on  the  question."  In 
South  Carolina  and  Maine,  the  opposite  doctrine  is 
held.^  It  is  doubtingly  held  in  Maine;  but  there 
execution  must  be  issued,  which  is  said  to  be  a 
determination  of  the  plaintiff's  election  to  seek  his 
satisfaction  in  that  particular  quarter.* 

In  Pennsylvania  the  question  has  been  ap- 
proached in  several  cases.  First  in  the  case  of 
Floyd  V.  Browne,  administrator  of  Truxton.^  This 
was  an  action  of  assumpsit,  against  the  adminis- 
trator of  a  sheriff,  to  recover  a  certain  sum  of 
money,  raised  by  the  sheriff  by  the  sale  of  personal 
property  of  the  plaintiff,  on  an  execution  against  a 
third  party.  Floyd  had  brought  a  previous  action 
of  trespass  against  the  plaintiff  in  the  execution 
and  others,  upon  which  he  had  obtained  a  verdict, 

^  Curtis  V.  Grout,  6  Johns.  168.  Osterhout  v.  Roberts,  8 
Cowen  43.  Livhigston  v.  Bishop,  1  Johns.  290.  Hepburn  v. 
Sewell,  5  Har.  &  Johns.  211.     Lovejoy  u.  Murray,  3  Wall.  1. 

'  2  Kent  Com.  389. 

^  Rogers  v.  Moore,  1  Rice  60,  8T.  Thompson  v.  Rogers,  2 
Brevard  410.     Carlisle  v.  Burley,  3  Greenl.  250. 

*  White  v.  Philbrick,  5  Greenl.  14Y.  See  Elliott  v.  Potter,  5 
Dana  300.     Campbell  v.  Phelps,  1  Pick.  62. 

^  1  Rawle  121. 


236  OF    THE    JUDGMEN^T. 

and  sued  out  execution,  which,  however,  was  stayed 
by  special  injunction.      The  defendant  pleaded  a 
special  plea  of  former  recovery,  which  set  forth  the 
proceedings  in  the  action  of  trespass.      To  this 
plea  the  plaintiff  demurred,   and  the  court  gave 
judgment  for  the  defendant  on  the  demurrer ;  and 
on  writ  of  error,  the  supreme  court  affirmed  the 
judgment.     It  is  difficult  to  say  exactly  upon  what 
ground  the  case  is  decided.     But  it  seems  to  rest 
principally  on  the  position  that  the  plaintiff  having 
brought  trespass  in  the  first  instance,  against  some 
of  the  parties,  he  could  not  afterwards  put  such  a 
face  on  the  transaction   as  would  enable  him  to 
support  assumpsit  against  others ;  and  the  learned 
judge  concludes,  "that  having  recovered  in  tres- 
pass, the  plaintiff  cannot  again  recover  in  an  action 
which  is  not  a  concurrent  remedy;  a  recovery  in 
trespass  producing  the  same  bar  that  is  produced 
by  a  recovery  in  trover,  against  a  recovery  in  as- 
sumpsit of  the  price  of  the  same  goods."    In  a  word, 
that  a  party  cannot  make  the  same  transaction  to 
suit  his  purpose  at  one  time  a  tort,  and  at  another 
a  contract. 

In  Marsh  v.  Pier,^  Judge  Kennedy  considers  the 
question  at  length,  and   inclines   to  the  opinion 

1  4  Rawle  273. 


or    THE    JUDGMEI^'T.  237 

that,  by  the  English  authorities,  the  property  is 
changed  by  the  judgment.  But  the  question  did 
not  arise. 

In  Fox  V.  The  Northern  Liberties,^  the  question, 
though  not  arising  in  the  case,  is  again  elaborately 
argued,  by  Judge  Kennedy,  and  the  same  opinion 
avowed,  which  he  had  previously  expressed  in 
Marsh  v.  Pier.  Judge  Kennedy  supports  his 
opinion  with  the  ability  for  which  he  was  so  dis- 
tinguished. But,  as  the  point,  not  being  involved, 
cannot  be  considered  as  settled  in  that  case,  it  may, 
perhaps,  be  as  well  to  point  out  what  appear  to  be 
the  defects  in  the  judge's  argument.  After  stating 
that  the  joint  trespassers  are  liable,  either  jointly 
or  severall}^,  to  the  party  injured,  and  that  he  may 
sue  each  separately,  at  the  same  time,  or  consecu- 
tively, and  prosecute  his  suit  against  each  to  judg- 
ment; and  having  obtained  judgment  against  each, 
he  has  a  right  to  elect  to  proceed  by  execution,  to 
enforce  payment  of  any  one  of  the  judgments  he 
pleases ;  and  that  a  judgment  of  recovery  against 
one  would  not  bar  the  plaintiff  in  his  action  against 
another,  without  payment  or  satisfaction  having 
been  made  to  the  plaintiff  in  some  way.  He  goes 
on,  "but  where  the  trespass  consists  in  forcibly 

»  3  W.  &  S.  103. 


238  OF    THE    JUDGME:srT. 

taking  the  personal  property  from  the  owner 
thereof,  by  one  who  sells  it  to  a  third  person,  and 
the  owner  sues  the  trespasser,  and  recovers  judg- 
ment against  him  for  the  value  of  the  property, 
as  also  for  the  tortious  taking  of  it,  he  cannot,  I 
apprehend,  afterwards  either  retake  the  property,  or 
sue  the  vendee  of  the  trespasser,  for,  or  on  account 
of  it ;  because  his  recovery  of  the  judgment  against 
the  trespasser,  for  the  value  of  the  property,  is 
regarded  as  the  price  thereof,  which  he  has  sought 
the  law  to  allow  him,  and  may,  therefore,  be  con- 
sidered as  a  sale  and  transfer  of  his  right  in  the 
property  to  the  defendant." 

"  By  obtaining  the  judgment,  he  acquires  a  right 
to  demand  and  receive,  from  the  defendant,  a 
specific  sum  of  money  in  lieu  and  in  satisfaction  of 
his  right  to  the  property,  and  ought  not,  therefore, 
to  be  permitted  to  seize  or  claim  the  property  itself 
afterwards." 

This  is  ingenious ;  but  as  the  property  has 
been  taken  from  the  plaintiff  against  his  will, 
and  no  price  has  or  can  be  fixed  upon  it  by  the 
parties,  the  proceeding  in  the  action  of  trespass 
would  seem  to  resemble  more  the  agreement  for  a 
sal.e  than  the  sale  itself;  being  the  method  for 
ascertaining   the   price,  when   the   parties   cannot 


OF    THE    JUDGMENT.  239 

agree,  and  resulting  in  what  the  law  might  regard 
as  a  contract  to  sell  for  cash,  at  the  sum  settled  by 
the  judgment.  But,  like  any  other  agreement  for 
a  sale  for  cash,  it  would  be  in  fieri,  and  confer  no 
title  till  the  money  was  paid.  This  view,  which 
was  presented  in  the  first  edition  of  this  book  in 
1849,  is  taken  by  Justice  Willes  in  Brismead  v. 
Harrison,  Law  Rep.  6  C.  P.  584,  and  followed  by 
Jessel  M.  R.,  and  James  L.  I.,  in  ex  parte  Drake  in 
re  Ware,  Law  E.  ch.  D.,  Yol.  5,  p.  871. 

Besides,  it  is  not  perceived  why  there  should  be 
a  distinction  in  the  eflect  of  the  judgment  in  this 
case,  and  the  judgment  against  one  of  several  joint 
trespassers,  lii  the  latter  case,  the  judgment,  con- 
fessedly, is  no  defence,  until  satisfaction,  to  any 
number  of  actions  against  others  for  the  same  tres- 
pass.^ Why  may  it  not  as  well  be  said,  that  the 
judgment  first  obtained  is  a  compensation  for  the 
injury  which  he  has  sought  the  law  to  allow  him, 
and  may,  therefore,  be  considered  as  a  settlement 
of  the  matter?  By  obtaining  the  judgment  he 
acquires  a  right  to  demand  and  receive,  from  the 
defendant,  a   specific  sum  of  money  in  lieu  and 

^  This  is  the  general  American  doctrine.  In  England  it  is 
held  otherwise.  Law  Rep.  t  C.  Pleas  547.  Law  R.  Ch.  D., 
Vol.  5,  p.  STL 


240  OP    THE    JUDGMENT. 

satisfaction  of  his  injury,  and  ought  not,  therefore, 
to  be  permitted  to  seek  redress  from  any  body  else. 

But,  however,  this  theory  of  pnrchase  and  sale, 
through  the  instrumentality  of  the  court,  may  hold 
in  trespass,  where  the  party  knows,  when  he  begins 
his  action,  that  he  can  only  recover  the  value  of 
the  goods,  not  the  goods  themselves,  it  does  not 
seem  to  apply,  with  equal  force,  to  the  action  of 
replevin,  where  the  plaintiif,  by  his  form  of  action, 
disclaims  any  intention  to  acquiesce  in  the  loss  of 
his  property,  bnt  goes  expressly  for  a  return  of  it 
in  specie,  which  he  is  only  prevented  from  obtain- 
ing by  the  success  of  the  defendant  in  secreting  it 
from  the  officer.  As  regards  the  "purchaser,  the 
hardship  is  no  greater  in  allowing  an  action  to  be 
brought  against  him  when  he  has  purchased  after 
the  commencement  of  the  action  against  the  origi- 
nal wrong-doer,  than  it  is  in  allowing  such  action 
to  be  brought  against  him  in  the  first  instance, 
which,  without  doubt,  may  always  be  done,  subject 
to  the  exceptions  before  stated  in  chapter  second. 

The  practical  difficulties  are  strongly  uged  by 
Jndge  Kenned}^,  in  a  subsequent  part  of  his 
opinion,  in  Fox  v.  The  JN^orthern  Liberties.  The 
answer  which  occurs  to  me  is  that  the  cases  sug- 
gested by  him  must  be  treated  like  several  judg- 


OF    THE    JUDGMENT.  241 

ments  against  joint  trespassers,  the  satisfaction  of 
any  one  of  which  will  discharge  the  others ;  with 
the  farther  observation,  that  in  i-eplevin  there  seems 
to  be  no  objection  to  finding  the  value  and  damages 
in  separate  sums.  The  point  is  said  by  Judge 
Rogers  to  be  no  longer  an  open  one  in  Pennsyl- 
vania.^ 

Under  the  present  Pennsylvania  practice  the 
mere  giving  the  claim  property  bond  puts  an  end 
to  the  plaintifi:''s  title,  which  is  thence  turned  into 
a  chose  in  action  to  be  compensated  for  in  dam- 
ages." This  doctrine  destroys  the  value  of  the 
action  of  replevin  as  a  substitute  for  a  bill  in 
equity.  Recourse  to  equity  is  now  the  only  certain 
means  of  enforcing  a  right  to  a  specific  chattel. 
The  bill  lies  only  in  cases  in  which  nothing  but  a 
return  of  the  thing  itself  would  do  justice.^ 

^  Merrick's  Estate,  5  W.  &  S.  IT. 

^  Fisher  v.  Whoollery,  1  Casey  198. 

^  McGowiii  V.  Remington,  12  Penna.  State  (2  Jones)  56. 
See  Lowther  v.  Lowther,  13  Ves.  95.  Puke  of  Somerset  v. 
Cookson,  3  P.  Wms.  389.  1  Wh.  &  Tudor's  Leading  Case  in 
Eq.  530.  Pusey  v.  Pusey,  1  Vern.  273.  Earl  of  Macclesfield 
V.  Davis,  3  Ves.  &  B.  18.  Falls  v.  Read,  3  Ves.  Tl.  Wood  u. 
Rowcliffe,  3  Hare  304. 


CHAPTER    XII. 

OF    THE   COSTS   IN"   REPLEVIN". 

Costs  were  not  recoverable  at  common  law  by 
either  plaintiff  or  defendant.  The  statnte  of 
Gloncester,  6  Edw.  I.,  ch.  1,  §  2,  gave  the  plaintiff 
a  ricrht  to  costs  in  all  cases  where  he  was  entitled 
to  damages.  Under  this  statute,  the  plaintiff  in 
replevin  is  entitled  to  costs.^ 

The  defendant  or  avowant  in  replevin,  although 
he  was  in  fact  an  actor,  was  not  within  the  words 
of  the  statute  of  Gloucester,  and  was  not  entitled 
to  costs  until  the  statute  7  Henry  YIII.,  ch.  4,  which 
gives  damages  and  costs  to  every  avowant,  and  to 
every  person  making  cognizance,  or  justifying  as 
bailiff'  in  replevin,  for  any  rent,  custom,  or  service, 
if  his  avowiy,  cognizance,  or  justification  be  found 
for  him,  or  the  plaintiff  be  otherwise  barred.  The 
statute  21  Henry  YIIL,  ch.  19,  extends  the  same 
benefit  to  defendants  avowing,  making  cognizance, 
or  justifying,  for  damage  feasant.^     These  statutes 

1  Gilb.  Repl.  165.     Tidcl  979.    Comyn's  Dig.  Tit.  Costs,  A.  1. 
*  See  Appendix. 


OF    THE   COSTS    IN    REPLEVIN.  243 

have  been  held  to  extend  to  the  case  of  an  estray/ 
and  to  an  avowry  by  an  executor  nnder  the  statute 
32  Hen.  YIII.,  ch.  37,  although  that  statute  is 
silent  as  to  costs. ^ 

The  case  of  a  defendant  claiming  property  is  said 
to  be  casus  omissus  under  the  statutes  Henry  YIII., 
so  that  he  is  not  thereby  entitled  to  costs.^  But 
the  statute  4  James  I.,  ch.  3,  remedies  the  omission 
by  giving  costs  to  the  defendant  in  all  cases  where 
they  could  have  been  claimed  by  the  plaintiif,  had 
he  succeeded."^  Where  the  suit  abates,  these 
statutes  do  not  give  costs  to  the  defendant.^ 

The  statute  17  Car.  II.,  ch.  7,  gives  full  costs 
when  the  defendant  proceeds  on  that  statute.  The 
statute  11  Geo.  II.,  ch.  19,  which  gives  the  com- 
mon avowry,  enacts,  that,  "  If  the  plaintiff  should 
become  non-suit,  discontinue,  or  have  judgment 
against  him,  the  defendant  should  recover  double 
costs  of  suit."  The  same  phraseology  is  used  in 
the  Pennsylvania  Act,  21st  March,  1772,  sec.  10. 

^  Haselip  v.  Chaplen,  Cro.  Eliz.  257,  329. 
2  Gilb.  Repl.  166.     Farvell  v.  Keightly,  2  Roll.  Rep.  457. 
^  Turner  v.  Gallillee,  Hard.  153.     Gilb.  Repl.  166. 
*  Gilb.  Repl.  166. 

5  Comyn's  Dig.  Tit.  Costs,  A.  4.  Comyn's  Rep.  122.  2  Lord 
Raymond  788. 

17 


244  OF    THE    COSTS   IJ^   EEPLEVU^". 

The  defendant  in  replevin  who  avows  generally 
under  11  Geo.  IL,  is  entitled  to  double  costs  in  his 
judgment,  notwithstanding  he  may  have  pleaded 
many  other  avowries,  with  a  view  merely  to  try  a 
title.' 

The  statute  is  confined  to  three  specific  cases, 
non-suit,  discontinuance,  and  judgment;  and, 
therefore,  Avhere,  in  replevin,  the  cause  not  being 
at  issue,  the  parties  agreed  by  bond  to  submit  the 
question  to  arbitration,  the  costs  to  abide  the 
event,  and  the  arbitrator  afterwards  awarded  in 
favor  of  the  defendant,  it  was  held  by  the  court  of 
king's  bench,  that  he  was  not  entitled  to  double 
costs.^  It  has  been  held  by  the  district  court  for 
the  city  and  county  of  Philadelphia,  that  the  judg- 
ment against  the  plaintiff  to  entitle  the  defendant 
to  double  costs  of  suit,  must  be  a  final  judgment.^ 
An  award  of  arbitrators,  therefore,  in  favor  of 
an  avowant,  does  not  require  payment  of  double 
costs  by  the  plain tifi*  on  appeal  from  the  award.^ 
In  taxing  the  costs  under  this  act,  it  should  be 
remembered  that  costs  and  fees  are  altogether  dif- 

^  Johnson  v.  Lawson,  2  Bing.  341.  Leominster  Canal  Com- 
pany V.  Cowel,  1  B.  &  P.  213.  Staniland  v.  Ludlam,  4  Barn. 
&  Cress.  889. 

=  Gurney  v.  Buller,  1  Barn.  &  Aid.  6T0. 

*  Hartley  v.  Bean,  1  Miles  168. 


OF    THE   COSTS   IN   REPLEVIN.  245 

ferent :  costs  being  an  allowance  to  the  party  for 
expenses  actually  paid,  or  for  which  he  is  respon- 
sible to  the  officers  of  the  court,  and  fees  being  a 
compensation  to  the  officers  for  services  due  by 
the  party  to  whom  they  Avere   so  rendered.     The 
question  whether  the  plaintiff  in  replevin  is  bound 
to  pay  double  fees  to  the  officer  employed  by  him- 
self, is  entirely  different  from  the  question  whether 
he  is  bound  to  pay  his  successful  antagonist  double 
the  amount  of  his  costs  and  charges  laid  out  and 
expended  about   the   suit.      The  rule  is,   that  as 
between    a    party    and    the    officer,    charges    for 
services  rendered  to  him  are  fees ;  as  between  the 
parties  to  the  cause,  charges  actually  paid  by  the 
successful  party,  or  for  which  he  is  responsible  to 
the  officer,  are  costs.     The  latter  only  being  con- 
sidered  costs,    of    course   those   only   are    to    be 
doubled.^      The   costs    are   recoverable   from   the 
sureties  in  the  replevin  bond.^     If  the  plaintiff  be 
non-prossed,  the  defendant  shall  have  his  costs  as 
in  other  cases.^ 

Under  the  statute  4  Anne,  ch.  16,  sect.  4,  5, 
which  allows  several  pleas,  and  which  has  been 

'  Musser  v.  Good,  11  S.  &  R.  248  ;  but  see  Staniland  v.  Lud- 
1am,  4  Barn.  &  Cress.  889. 

'  Tibbal  v.  Caboiin,  10  Watts.  232. 
'  Davies  v.  James,  1  T.  R.  312. 


246  OF    THE   COSTS   IN  REPLEVIN". 

construed  to  extend  to  avowants  in  replevin,^  the 
costs  of  double  pleadings  are  left  in  the  discretion 
of  the  court.  The  form  for  entering  judgment  for 
costs  states  it  to  be  by  discretion  of  the  court.^ 

"Where  some  issues  in  replevin  are  found  for  the 
plaintiff,  which  entitle  him  to  judgment,  and  some 
for  the  defendant,  the  defendant  must  be  allowed 
the  costs  of  the  issues  found  for  him  out  of  the 
general  costs  of  the  verdict,  unless  the  judge 
certify  that  the  plaintiff  had  probable  cause  for 
pleading  the  matter  on  which  these  issues  are 
joined;  and  in  such  case  it  is  the  practice  in 
England  not  only  to  allow  the  costs  of  the  plead- 
inofs,  but  also  the  costs  of  the  trial  of  the  issue.'' 
And  the  costs  of  such  parts  of  the  pleadings  and 
briefs,  and  of  such  witnesses  as  are  not  applicable 
to  the  points  on  which  the  verdict  for  the  success- 
ful party  proceeds,  must  be  deducted  fi'om  the 
general  costs.* 

1  Stone  V.  Forsyth,  Dougl.  708,  9,  note  2. 

*  Wilk.  Repl.  106. 

3  Brooke  v.  Willet,  2  H.  Black.  435.  Dodd  v.  Joddrell,  2  T. 
K.  235. 

*  Penson  v.  Lee,  2  Bos.  &  Pul.  335.  2  Fox  &  Smith's  Irish 
Rep.  47.  Cook  v.  Green,  1  Marsh.  234.  Cook  v.  Green,  5 
Taunt.  594. 


OF    THE   COSTS   IN   REPLEVI]^'.  247 

In  replevin  for  several  articles,  if  the  jury  find 
for  the  plaintiff  as  to  part  of  them,  and  for  the 
defendant  as  to  part,  assessing  to  each  the  proper 
damages,  separate  judgments  will  be  entered  in 
favor  of  each  with  full  costs/  The  act  of  3d 
April,  1799,  declaring  illegal  a  replevin  for  goods 
and  chattels,  levied,  seized,  or  taken  in  execution, 
or  by  distress,  or  otherwise,  by  any  sheriff,  &c.,  in 
case  of  its  violation  gives  treble  costs  to  the  defen- 
dant.^ The  avowant  in  replevin,  residing  out  of  the 
jurisdiction  of  the  court,  may  be  compelled  to  give 
security  for  costs.^ 

'  Winnard  v.  Foster,  Lutw.  1190.  Clark  v.  Keith,  9  Ohio  R. 
t2.  Powell  V.  Hinsdale,  5  Mass.  343.  Poor  v.  Woodburn,  25 
Vt.  234. 

'  1  Sm.  Laws  470. 

'  Selby  V.  Crutchley,  4  Moore  280.     s.  c.  1  Bro.  &  Bing.  505. 


CHAPTER    XIII. 

OF    THE    EXECUTION. 

The  plaintiff  in  replevin  is  entitled  to  execution 
by  fieri  facias,  and  capias  ad  satisfaciendum,  and 
in  England  by  elegit. 

There  are  several  executions  for  the  defendant. 
First,  on  the  judgment  of  retorno  habendo,  at 
common  law,  he  is  entitled  to  his  writ  of  retorno 
habendo,^  by  which  the  sheriff  is  commanded  to 
cause  the  goods  and  chattels  to  be  returned  to  him. 
This  it  is  seldom  possible  for  the  sheriff  to  do. 
The  distress  creates  no  lien  upon  the  goods,  and 
they  remain  in  the  hands  of  the  plaintiff  in  replevin, 
liable  to  any  subsequent  distress,  or  to  any  dis- 
position which  he  may  choose  to  make  of  them.^ 

^  A  doubt  is  expressed  bj  the  supreme  court,  in  Gibbs  v. 
Bartlett,  2  W.  &  S.  34,  as  to  whether  this  writ  was  ever  issued 
in  Pennsylvania:  tliere  are  numerous  instances  of  it  on  the 
records  of  the  courts  of  the  city  and  county  of  Pliiladelphia. 

*  Woglan  V.  Cowperthwaite,  2  Dall.  68.  Bradyll  v.  Ball,  1 
Brown's  Ch.  Rep.  427.  Frey  v.  Leeper,  2  Dall.  131.  See 
Appendix,  Stat.  West.  II.,  13th  Ed.  I.,  ch.  2,  §  2  at  close.  Ex 
parte  Devine,  1  Cook's  Bank.  Law  176,  &c. 


OF    THE    EXECUTIOl^.  249 

The  writ  of  retorno  habendo  will  not  justify  the 
sheriff  in  taking  them  from  the  possession  of  any 
third  person,  who  has  acquired  a  right  to  their 
possession  since  the  replevin.  In  this  case,  the 
proper  return  for  the  sheriff  to  make  is  that  the 
goods  have  been  eloigned. 

In  Maryland,  when  the  property  replevied  was 
either  a  mulatto  negi'o  or  a  negro  slave,  it  was  by 
statute  declared  unlawful  for  either  plaintiff  or  de- 
fendant, or  any  other  person,  in  whose  possession 
the  said  property  might  be,  to  sell  such  property 
until  the  action  was  determined :  the  sale  was 
declared  void,  unless  ordered  by  the  court,  and  it 
was  declared  felony  to  sell  or  transport  such  pro- 
perty out  of  the  State,  pending  the  suit/ 

Upon  the  return  of  "  eloigned,"  the  practice  in 
England  was,  formerly,  to  issue  what  was  called  a 
capias  in  withernam  to  the  sheriff,  by  which  he  was 
commanded  to  take  other  goods  of  the  plaintiff  of 
equal  value  with  those  eloigned,  and  deliver  them 
to  the  defendant,  to  be  by  him  detained  irreple- 
visable, until  the  goods  fii-st  taken  should  be  forth- 
coming. If  the  plaintiff  had  no  cattle  or  goods 
which  could  be  so  taken,  the  sheriff  returned  nihil 
to  that  writ:  and  the  defendant,  thereupon,  sued 

^  Act  April,  1833,  ch.  2U.     2  Dorsey's  Laws  1129. 


250  OF    THE    EXECUTION. 

out  a  scire  facias  against  the  pledges,  who  had  un- 
dertaken to  the  sheriff,  in  pursuance  of  the  statute 
of  Westminster  II.,  that  the  cattle,  &c.,  should  he 
returned  to  the  defendant,  to  show  cause  why  their 
cattle,  &c.,  to  the  value  of  the  cattle,  &c,,  eloigned, 
should  not  be  delivered  to  the  defendant  ;^  and  if 
no  cause  were  shown,  a  writ  issued  to  take  their 
cattle,  &c. ;  but  if  they  had  none,  the  sheriff  re- 
turned nihil  also  to  that  writ,  and  then  a  scire 
facias  was  awarded  against  the  sheriff  himself,  that 
he  render  to  the  defendant  so  many  cattle,  &c.^ 

It  is  no  longer  necessary  to  sue  out  a  capias  in 
withernam  against  the  plaintiff,  or  a  scire  facias 
against  the  pledges  or  sheriff;  but  the  defendant 
may  proceed  on  the  replevin  bond,  or  bring  an 
action  on  the  case  against  the  sheriff,  on  the  con- 
struction of  the  statute  of  Westminster  II.,  if, 
contrary  to  that  act,  the  sheriff  have  taken  no 
pledges  at  all,  or  if  the  pledges  be  insufficient.^ 

Second,  under  the  statutes  of  Henry  VIII.,  if  the 
cause  comes  to  trial,  the  jury  assess  the  damages, 

^  1  Wms.  Saund.  195,  a.  N.  3. 

^  1  Wms.  Saund.  195,  a.  Note  3.  Rous  u.  .Patterson,  16  Yiner 
Abr.  399,  400.  Mayser  v.  Gray,  Cro.  Car.  446.  Sir  W.  Jones 
318.  Bradyll  v.  Ball,  1  Bro.  Cli.  Rep.  427.  Wilk.  Repl.  121. 
See  Post,  ch.  xvi. 


OF    THE    EXECUTION".  251 

and  then  the  retorno  habendo  is  accompanied  by 
the  fieri  facias  and  capias  ad  satisfaciendum,  for 
tlie  damages  and  costs.  If,  however,  the  judgment 
against  the  plaintiff  is  by  default,  a  writ  of  inquiry 
must  be  issued  to  ascertain  the  damages  and  costs, 
either  in  the  same  or  by  a  separate  writ.^  Upon 
the  return  thereof  by  the  sheritf,  final  judgment  is 
entered  up  for  the  defendant  to  recover  as  well  the 
damages  and  costs  assessed  by  the  jury,  as  the 
costs  adjudged  by  the  court,  and  for  these  a  capias 
or  fieri  facias  may  issue.^  It  is  said,  that  after  a 
judgment  for  a  return,  there  is  no  necessity  for 
damages  under  the  statutes  of  Henry  YIII.,  except 
to  entitle  the  defendant  to  costs,  and,  therefore  a 
remittitur  may  be  entered  for  the  damages  under 
those  statutes,  and  the  defendant  may  have  judg- 
ment for  the  costs.^ 

Where  the  defendant  proceeds  under  the  statute 
17  Chas.  II.,  ch.  7,  he  shall  have  execution  on  his 
judgment  for  damages  and  costs  by  fieri  fiicias. 
The  terms  of  the  act  must  be  strictly  pursued,  to 
entitle  him  to  judgment  under  it.  Thus,  if  the 
jury  inquire  of  the  rent  in  arrear,  but  omit  to  find 
the  value  of  the  goods,  or  vice  versa,  the  omission 

1  1  Wms.  Saiind.  195,  note  3. 

^  Thes.  Brev.  56,  221.     1  Wms.  Sauiul.  195,  N.  3. 

^  Wilk.  Repl.  71. 


252  OF    THE   EXECUTIOIJ^. 

cannot  be  supplied  by  a  writ  of  inquiry.  The 
defendant  may,  nevertheless,  ha,ve  his  common  law 
judgment  of  retorno  habendo,  and  the  correspond- 
ing execution.  If  the  statute  is  strictly  pursued, 
he  will  be  entitled  to  his  fieri  facias  for  the  amount 
of  the  arrears,  or  for  so  much  thereof  as  the  value 
of  the  goods  and  chattels  distrained  shall  amount 
unto.  It  is  said  to  be  unsettled  whether  he  is 
entitled  to  a  capias.^  In  the  case  of  Weidel  v. 
Roseberry  and  Miller,^  which  was  replevin  for 
goods  taken  on  a  distress  for  rent ;  the  defendant, 
Roseberry,  made  conusance  under  Miller,  who 
avowed  for  rent  arrear,  replication,  no  rent  arrear, 
and  issue.  The  jury  found  for  the  defendant  one 
hundred  and  twelve  dollars  and  ninety-five  cents, 
on  which  judgment  was  entered  in  short,  and  it 
was  supported  as  a  judgment  of  retorno  habendo. 
The  goods  levied  upon  were  the  goods  of  a  third 
person  on  the  premises.  In  delivering  the  opinion 
of  the  court.  Judge  Duncan  uses  the  following 
language:  "If  this  was  a  judgment  on  which  the 
defendant  might  take  out  execution  against  the 
plaintifi"  for  the  rent  found  to  be  in  arrear  by 
Grouse,  as  the  plaintiif  was  not  the  tenant,  it  would 
be  erroneous ;  and  even  against  the  tenant,  where 
the  jury  had  only  found  the  rent  in  arrear,  without 

1  Wilk.  Repl.  HI.  M3  S.  &  R.  178. 


OF    THE   EXECUTION.  253 

finding  the  value  of  the  goods  distrained,  such 
judgment  could  not  be  enforced  by  execution."  If 
the  judge  meant,  what  the  language  would  seem  to 
imply,  that  if  the  statute  17  Chas.  II.,  ch.  7,  was 
strictly  pursued,  and  the  value  of  the  goods,  and 
the  amount  of  rent  arrear,  respectively  found,  that 
it  would  make  any  difference,  in  issuing  the  fieri 
facias  for  the  rent,  if  the  goods  were  of  that  value, 
whether  the  plaintiff  was  a  tenant  or  a  stranger,  it 
would  seem  that  he  was  mistaken.  The  goods  of 
a  stranger,  upon  the  premises,  are,  with  some  ex- 
ceptions, liable  to  a  distress  for  rent.  If,  on  his 
replevin,  he  cannot  bi'ing  them  within  one  of  the 
exceptions,  and  so  judgment  is  given  against  him, 
there  can  be  no  injustice  in  compelling  him  to  a 
restitution  of  the  goods,  or  the  value,  by  the  same 
means  which  would  be  used  against  the  tenant. 
The  law  restricts  the  fieri  facias  to  the  value  of  the 
goods  taken,  to  which  amount  he  is  clearly  liable 
ultimately  through  his  bond  to  the  sheriff,  unless 
he  defeats  the  defendant  in  replevin.  The  only 
effect  of  giving  the  fieri  facias  is  to  shorten  the 
time  during  which  the  landlord  may  be  deprived 
of  his  rent.  But  as  fail  are  to  pay  rent  is  a  pretty 
sure  indication  of  want  of  property,  the  fieri  facias 
is  but  little,  if  ever,  resorted  to ;  it  being  con- 
sidered  the   safest   and   most   expeditious  course 


254  OF    THE   EXECUTIOJJ". 


to  proceed  against   the   sureties    in  the  replevin 
bond.^ 


In  Massachusetts  a  writ  of  reprisal  similar  to  the 
capias  in  withernam,  is  given  by  statute.  In  'New 
York,  !N^ew  Hampshire,  Pennsylvania,  Delaware, 
Wisconsin,  it  is  not  known  in  practice.  If  judg- 
ment is  given  against  the  plaintiff  for  a  sum  of 
money,  he  is  entitled  to  stay  of  execution,  as  in 
other  cases.^ 

^  See  post,  eh.  xv. 

'  Roe  V.  McCrea,  1  Ash.  16. 


CHAPTER    XIY. 

OF    THE  WRIT    DE    HOMIXE   EEPLEGIAI^DO. 

Beeoee  the  habeas  coi'pus  act,  replevin  was  the 
principal  remedy  for  an  illegal  imprisonment.  It 
is  now  very  rarely  used  in  England ;  but  in  several 
of  the  United  States  it  used  to  be  the  remedy  pointed 
out  by  statute  for  an  illegal  attempt  to  hold  a  slave. 

In  Pennsylvania,  the  supreme  court  at  an  early 
day  recognized  the  common  law  writ  as  an  existing 
remedy,  and  quite  recently  it  has  been  resorted  to 
successfully  as  an  expedient  for  freeing  a  fugitive 
from  justice.  Under  these  circumstances,  it  seemed 
that  a  brief  outline  of  the  proceedings  on  this  writ 
would  not  find  an  inappropriate  place  in  the  present 
volume. 

Reeve,  in  his  History  of  the  Common  Law,  says 
that,  "The  writ  de  homine  replegiando  lay  where  a 
man  was  imprisoned,  but  was  by  law  replevisable; 
a  writ  therefore  for  his  being  replevied  issued  to 
the  sherift'  to  the  following  effect:  'We  command 
you  that  justly  and  without  delay  you  cause  A.  to 


256.     or    THE    WEIT    DE    HOMIXE    REPLEGIANDO. 

be  replevied,  whom  B.  took,  and  taken  doth  hold, 
(or  whom  B.  took  and  you  hold  captive),  unless 
he  was  taken  by  our  special  precept,  or  that  of  our 
chief  justice,  or  for  the  death  of  a  man,  or  for  some 
other  act  for  which,  according  to  the  laws  of  our 
realm  of  England,  he  is  not  replevisable,  &c. ;'  this 
was  a  justicies,  and  not  returnable. 

"If  the  sheriff  did  not  obey  this  writ,  there  issued 
a  sicut  alias,  or  causam  nobis  significes,  and  then 
a  pluries ;  and  if  the  sheriff  still  disobeyed,  then 
an  attachment  followed  against  the  sheriff,  directed 
to  the  coroner,  who  was  also  to  see  the  first  writ 
executed."^  Security  was  given  to  the  sheriff  that 
the  man  should  be  forthcoming  to  answer  any 
charge  against  him.^  In  fact,  the  proceedings 
upon  the  homine  replegiando  were  very  much  the 
same  as  in  the  common  cases  of  replevin  for  goods. 
If  the  sheriff  returned  elongatus  which  he  might 
do,  a  capias  in  withernam  issued  to  detain  the 
defendant  without  bail  or  main  prize  until  he  pro- 
duced the  party. 

If  the  defendant  came  in  and  pleaded  non  cepit, 
before  the  issuing  of  the  capias  in  withernam,  he 
was  entitled  to  be  discharged  without  putting  in 

^  3  Reeve's  Hist.  83.  ""  3  Black.  Com.  129. 


OF    THE    WRIT    DE    HOMIIS'E    REPLEGIANDO.       257 

bail.  If  he  had  been  taken  on  the  withernam,  he 
was  entitled  to  be  bailed,  notwithstanding  the  re- 
turn of  elongatus,  or  the  surmise  in  the  writ,  for 
his  plea  was  said  to  be  better  than  the  surmise  in 
the  writ,  because  the  proof  was  incumbent  on  the 
plaintiff;  and  the  sheriff's  return  was  not  conclu- 
sive, because  it  was  the  only  return  which  he  could 
make,  as  he  was  not  allowed  to  contradict  the  writ 
by  returning  non  cepit. 

It  was  a  good  return  to  a  homine  replegiando  to 
say  that  the  defendant  claimed  the  man  as  villein, 
but  upon  the  return  of  the  writ  to  the  court,  if  any 
persons  came  into  the  court  and  gave  security  to 
have  the  plaintiff  in  court  at  a  day  certain,  a  writ 
issued  to  the  sheriff  to  deliver  the  plaintiff;  and 
upon  the  coming  of  the  plaintiff  into  court  at  the 
day,  he  was  required  to  give  new  security  to  ap- 
pear in  court  de  die  in  diem,  until  the  plea  was  de- 
termined, and  if  judgment  should  be  given  against 
him,  then  his  bail  was  to  bring  him  in  and  deliver 
him  to  the  defendant,  and  if  he  could  not  find  such 
bail,  then  he  was  committed  to  the  custody  of  the 
marshal,  and  at  the  end  of  the  suit  was  brought  by 
him  into  court  and  delivered  to  the  defendant,  if 
such  was  the  judgment.^ 

In  one  case  where  a  wife  had  left  her  husband, 

^  Moor  V.  Watts,  1  Lord  Raym.  615. 


258      OF    THE   WRIT    DE    HOMIXE    KEPLEGIAKDO.  J 

he  issued  a  homine  replegiando,  and  after  an  alias 
and  a  pluries,  the  sheriff  returned  that  the  defen- 
dants (her  father  and  mother)  had  eloigned  her  to 
places  unknown ;  and  upon  the  day  of  the  return 
of  the  pluries,  the  defendants  entered  their  appear- 
ance, but  notwithstanding  this  appearance,  the 
plaintiff  sued  out  a  capias  in  withernam  against 
the  defendants.  C.  J.  Holt  stayed  the  withernam, 
whereupon  they  moved  for  a  supersedeas  of  it,  \ 
because  they  had  entered  their  appearance,  and 
offered  to  plead  non  ceperunt,  which  they  were  1 
allowed  to  do.^ 

In  ^ew  York,  before  the  revised  statutes  (which 
especially  provide  for  the  writ  de  homine  replegi- 
ando, in  case  of  negroes  detained  as  slaves),  in  the 
case  of  Skinner  v.  Fleet,^  which  was  an  action  of 
trespass  on  the  case  against  a  sheriff  for  suffering 
a   slave,  taken  on   homine   replegiando,  to  go  at 

^  Delabastide  v.  Rej'nell,  Cartli.  287.  In  this  case  the  plain- 
tiff was  said  to  be  a  Switzer.  It  presents  rather  an  odd  instance 
of  the  retaliation  supposed  to  be  the  consequence  of  a  capias 
in  "withernam,  as  the  abduction  of  the  wife  would  hardly  be 
recompensed  by  the  capture  of  the  mother-in-law.  There  is 
one  case,  3  Mod.  120,  in  wliich  the  party,  an  Indian,  is  said  to 
have  turned  Christian  and  been  baptized;  whether  the  decision 
was  influenced  thereby  is  not  expressly'  stated. 

""  14  Johns.  263. 


OF    THE    WRIT    DE    IIOMINE    REPLEGIA:N'D0.       259 

large  without  sureties,  whereby  he  was  lost  to  his 
master ;  the  court  state  the  proper  course  of 
practice  in  such  cases.  They  say,  "We  consider 
the  case  of  Covenhoven  v.  Seaman,  1  Johns.  Cases 
23,  as  having  established  the  practice  and  proceed- 
ings of  this  court  upon  this  writ,  in  conformity 
with  the  course  of  proceedings  in  England,  as 
laid  down  in  Fitz.  Nat.  Bre.  68  and  155.  The 
i^arty  suing  out  the  writ,  and  claiming  to  be  free, 
should  enter  into  a  recognizance  in  court,  with 
sufficient  sureties  to  the  party  claiming  him  to  be 
a  slave,  to  prove  his  liberty,  personally  to  appear 
in  court,  and  to  prosecute  his  suit  with  effect.  In 
the  case  of  Covenhoven  v.  Seaman,  the  suit  was 
on  such  a  recognizance,  and  the  person  alleged  to 
be  a  slave  had  not  proved  his  libert}^,  or  prosecuted 
his  suit  with  effect,  but  had  been  non-suited,  and 
the  court  held  that  the  suit  was  maintainable.  In 
Moor  V.  Watts  (12  Mod.  428),  Lord  Holt  said,  '  If 
a  homine  replegiando  be  brought,  and  the  defen- 
dant claims  the  party  to  be  his  villein,  that  will  be 
a  good  return  for  the  sheriff  to  make,  and  there 
shall  be  no  replevin  imtil  the  plaintiff  give 
security,  and  that  in  court,  and  then  there  shall 
go  a  writ,  reciting  the  security  entered  into  in 
court,  to  the  sheriff  to  deliver  the  plaintiff;  and 
when  the  plaintiff  comes  in  upon  that  security  so 
entered  into  in  court,  he  is  not  at  large,  but  to  find 
18 


260      or    THE    WRIT    DE    HOMINE   REPLEGIANDO. 

new  security  that  he  shall  appear  from  day  to  day, 
pendmg  the  cause;  and  if  judgment  go  against 
him,  he  shall  render  himself  to  the  defendant,  and 
he  takes  him  out  of  court.'  The  judge,  at  the 
trial,  ruled  correctly  that  the  sheriif  ought  to  have 
brought  Primus  (the  slave  and  plaintifl')  into 
court,  on  the  homine  replegiando,  and  returned 
that  he  was  claimed  as  slave.  Instead  of  doing 
so,  it  was  admitted  that  he  replevied  him,  and  set 
him  at  liberty,  as  mentioned  in  the  declaration  of 
the  plaintiff;  and  the  declaration  charges  that  the 
defendant,  as  sheriff  of  the  city  and  county  of  IS'ew 
York,  under  the  writ  of  pluries  homine  replegi- 
ando, voluntarily  permitted  Primus,  being  in  his 
custody  upon  the  said  writ,  and  claimed  by  the 
plaintiff  as  his  slave,  and  taken  from  his  posses- 
sion, to  escape  from  his  custody,  and  go  at  large 
without  sureties,  &c.  It  appeared,  however,  that 
the  sheriff  took  a  bond  to  himself  with  sureties 
for  the  prosecution  of  the  writ  with  effect,  and 
that  Primus  should  prove  his  liberty,  and  for  the 
return  of  Primus,  if  return  should  be  adjudged. 
This  bond  we  consider  of  no  avail,  as  the  sheriff 
has  no  power  or  right  to  take  it ;  and,  consequently, 
it  affords  no  proof  that  an  escape  of  Primus  did 
not  take  place ;  nor  is  it  any  answer  to  the  allega- 
tion, that  the  sheriff'  suffered  Primus  to  escape 
and  go  at  large  without  sureties ;  for  this  means 


OF    THE    WRIT    DE   HOMIJ^E   REPLEGIANDO.       261 

sureties  in  the  mode  prescribed  by  law ;  and  we 
have  ah'eady  seen  that  this  must  be  by  a  recog- 
nizance in  court.  It  appears  that  the  defendant 
assigned  this  bond  to  the  plaintiff,  with  the  assent 
of  his  attorney.  But  it  is  not  stated  or  proved 
that  it  was  accepted  in  discharge  of  this  suit ;  and 
in  no  other  way  can  the  assignment  bar  the  plain- 
tiff's recovery.  The  bond  is  not  so  assignable  as 
to  enable  the  assignee  to  sue  in  his  name,  and  the 
assignment  and  acceptance  of  the  bond  are  not 
pretended  to  have  been  by  way  of  accord  and  satis- 
faction." 

ISTotwith standing  an  infant  has  been  delivered  to 
his  father  by  a  homine  replegiando,  he  may  be 
brought  up  on  habeas  corpus,  and  permitted  to  re- 
turn to  a  master  to  whom  he 'has  been  apprenticed.^ 

In  Pennsylvania  the  practice  does  not  seem  to 
be  settled  by  any  decision.  In  ex  parte  Lawrence,^ 
in  1812,  the  court  say  that  the  writ  de  homine  re- 
plegiando may  be  resorted  to.  In  1819,  the  writ 
was  resorted  to  in  the  case  of  Wright  v.  Deacon,^ 
but  was  quashed  under  the  following  circumstances. 
The  writ  was  sued  out  by  the  plaintiff,  a  colored 
man,  against  the  defendant,  who  was  the  keeper 
of  the  county  prison ;  and  the  defendant's  counsel 

'  People  V.  Pellero,  1  Saund.  672.  ^  5  Biun.  304. 

'  5  S.  &  R.  62. 


262      OF    THE   WRIT   DE    HOMINE    PtEPLEGIA:N"DO. 

moved  to  quash  it,  on  the  ground  of  its  having 
issued  contrary  to  the  constitution  and  laws  of 
the  United  States.  The  facts  were  submitted  to 
the  court,  in  a  case  stated,  by  which  it  appeared, 
that  the  plaintiff,  having  been  claimed  by  Kaisin 
Gale,  of  Kent  county,  in  the  State  of  Maryland,  as 
a  fugitive  from  his  service,  was  arrested  by  him 
in  the  county  of  Philadelphia,  and  carried  before 
Richard  Renshaw,  Esq.,  justice  of  the  peace,  who 
committed  the  plaintiff  to  prison,  in  order  that 
inquiry  might  be  made  into  the  claim  of  the  said 
Gale.  The  plaintiff  then  sued  out  a  habeas  corpus, 
returnable  before  Thomas  Armstrong,  Esq.,  an 
associate  judge  of  the  court  of  common  pleas. 
Judge  Armstrong,  having  heard  the  parties,  gave 
a  certificate,  that  it  a^Dpeared  to  him,  by  sufficient 
testimony,  that  the  plaintiff  owed  labor  or  service 
to  the  said  Gale,  from  whose  service,  in  the  State 
of  Maryland,  he  had  absconded,  and  the  said  judge, 
therefore,  in  pursuance  of  the  act  of  the  congress 
of  the  United  States,  in  such  case  made  and  pro- 
vided, delivered  the  said  certificate  to  the  said 
Gale,  in  order  that  the  plaintiff  might  be  removed 
to  the  State  of  Maryland.  C.  J.  Tilghman,  in  de- 
livering the  opinion  of  the  court,  says :  "  The  cer- 
tificate was  a  legal  warrant  to  remove  the  plaintiff 
to  the  State  of  Maryland.  But  if  this  writ  of 
homine  replegiando  is  to  issue  from  a  State  court, 


OF    THE   WRIT    DE    HOMIN^E    REPLEGIANDO.       263 

what  is  its  eifect,  but  to  arrest  the  warrant  of  Judge 
Armstrong,  and  thus  defeat  the  constitution  and 
law  of  the  United  States  ?  The  constitution  and 
the  law  say,  that  the  master  may  remove  his  slave 
by  virtue  of  the  judge's  certificate:  but  the  State 
court  says,  that  he  shall  not  remove  him.  It 
appears  to  us  that  this  is  the  plain  state  of  the 
matter,  and  that  the  writ  has  been  issued  in  viola- 
tion of  the  constitution  of  the  United  States. 
We  are,  therefore,  of  opinion,  that  it  should  be 
quashed." 

A  copy  of  the  writ  issued  will  be  found  in  the 
appendix.  The  docket  entries,  in  that  case,  have 
been  examined,  but  they  present  no  evidence  of 
bail  having  been  given,  or  a  recognizance  entered 
into  by  the  plaintiff*,  or  any  one  on  his  behalf. 
The  return  to  the  writ  is  summoned  and  replevied, 
the  inference  from  which  would  be,  that  the  party 
was  set  at  liberty  by  the  sheriff.  But  the  subse- 
quent proceedings,  on  the  motion  by  defendant  to 
quash  the  writ,  and  on  the  case  stated,  would 
rather  imply  that  the  plaintiff  remained  in  custody, 
or,  at  all  events,  under  the  control  of  the  defen- 
dant and  the  sheriff,  otherwise  there  would  seem 
to  be  no  reason  for  the  defendant's  effort  (which 
proved  successful)  to  quash  the  writ.  By  inquiry 
from  the  counsel  engaged  in  the  case,  it  has,  how- 


264      OE    THE   WEIT    DE    H0MI:N^E    EEPLEGIAIirDO. 

ever,  been  ascertained,  that  an  ordinary  replevin 
bond  was  given  to  the  sheriff,  and  that  the  plaintiff 
was  by  him  immediately  set  at  large. 

In  the  case  of  Brown  v.  Freed,  in  the  supreme 
conrt  of  Pennsylvania  for  the  eastern  district, 
of  July  term,  1857,  the  writ  was  issued  to  take 
the  prisoner  out  of  the  custody  of  the  keeper  of 
the  county  prison.  He  had  been  committed  as  a 
fugitive  from  justice,  to  await  the  requisition  of 
the  governor  of  Maryland.  On  the  arrival  of  the 
warrant  of  the  governor  of  Pennsylvania,  Brown 
was  brought  into  court  on  a  habeas  corpus,  and  \ 
after  full  discussion,  the  governor's  warrant  was 
declared  informal  and  insufficient  for  its  purpose. 
But,  instead  of  discharging  the  prisoner,  the  court 
remanded  him  to  the  custody  of  Freed,  the  keeper 
of  the  county  prison,  to  await  the  arrival  of  a 
more  formal  warrant.  In  the  interval,  the  writ  de 
homine  replegiando  was  sued  out  in  the  name  of 
the  prisoner,  against  the  keeper  of  the  prison ;  an 
ordinary  replevin  bond  was  given  to  the  sheriff, 
and  the  party  was  set  at  liberty.  The  writ  has 
not  been  returned,  and  no  further  proceedings  have 
been  had  in  the  case.  Under  the  act  of  assembly 
of  the  State  of  Pennsylvania,  of  March  3d,  1847,' 
neither  the  keeper  of  the  county  prison,  nor  any 

^  Pamph.  Laws  184T,  206. 


OF    THE   WRIT    DE   HOMII^E    REPLEGIAN^DO.       265 

other  State  officer,  is  allowed  to  hold  in  custody  a 
fugitive  from  labor;  he  would,  therefore,  in  such 
a  case,  have  nothing  to  interpose  to  the  writ  of 
homine  replegiando.  But  where  the  fugitive  from 
labor  is  in  custody  of  a  United  States  officer,  or 
of  the  party  claiming  him,  or  where  the  j^risoner  is 
a  fugitive  from  justice,  and  duly  committed  to 
await  a  requisition,  it  would  seem  to  be  a  dangerous 
course  for  the  sheriff  to  set  him  at  liberty  on  the 
homine  replegiando,  without  bringing  him  into 
court,  and  stating  the  claim  upon  which  he  is 
detained ;  and  an  equally  dangerous  course  for  the 
custodian,  if  an  officer,  to  permit  him  to  be  re- 
moved without  asserting  the  cause  of  detention, 
and  claiming  to  retain  him. 

In  Maryland  this  writ  is  not  allowed/ 

^  Johnson  v.  Medtart,  4  Har.  &  J.  24. 


CHAPTEE    XY. 

or  THE  replevi:n^  boxd. 

The  sheriff  never  executes  a  writ  of  replevin 
without  taking  a  bond  from  the  plaintiff,  usually 
with  two  sureties,  in  double  the  amount  of  the 
value  of  the  goods  taken,  conditioned  to  prosecute 
the  suit  with  effect,  and  without  delay,  and  to 
return  the  goods,  if  a  return  shall  be  awarded,  and 
to  indemnify  the  sheriff.  The  clause  for  the  in- 
demnification of  the  sheriff  is  not  required  by 
statute. 

The  statute,  "Westminster  II.  (13  Ed.  I.),  c.  2,  s.  3, 
provides,  "  that  the  sheriff  or  bailiffs  from  thence- 
forth shall  not  only  receive  the  plaintiff's  pledges 
for  the  pursuing  of  the  suit,  before  they  make  de- 
liverance of  the  distress,  but  also  for  a  return  of  the 
beasts,  if  the  return  be  awarded."  The  statute  11 
Geo.  II.,  c.  19,  sec.  23,  enacted,  "  that  all  sheriffs, 
and  other  oflScers,  having  authority  to  grant  reple- 
vins, may  and  shall  in  every  replevin  of  a  distress 
for  rent,  take,  in  their  own  names,  from  the  plain- 
tiff, and  two  responsible  persons  as  sureties,  a  bond 


OP    THE   KEPLEVIN"   BOND.  267 

in  double  the  value  of  the  goods  distrained  (such 
value  to  be  ascertained  by  the  oath  of  one  or  more 
credible  witnesses),  and  conditioned  for  prosecut- 
ing the  suit  with  effect,  and  without  delay,  and  for 
duly  returning  the  goods  and  chattels  distrained, 
in  case  a  return  shall  be  awarded,  before  any  de- 
liverance be  made  of  the  distress ;  and  that  such 
sheriff,  or  other  officer  as  aforesaid,  taking  any  such 
bond,  shall,  at  the  request  and  costs  of  the  avowant, 
or  person  making  cognizance,  assign  such  bond  to 
the  avowant  or  person  aforesaid,  by  endorsing  the 
same,  and  attesting  it  under  his  hand  and  seal  by 
two  or  more  credible  witnesses ;  and  if  the  bond  so 
taken  and  assigned  be  forfeited,  the  avowant  or 
person  making  cognizance,  may  bring  an  action 
and  recover  thereupon  in  his  own  name,  and  the 
court,  where  such  action  shall  be  brought,  may,  by 
a  rule  of  the  same  court,  give  relief  to  the  parties 
upon  such  bond,  as  may  be  agreeable  to  justice 
and  reason,  and  such  rule  shall  have  the  nature  and 
effect  of  a  defeasance  to  such  bond." 

The  Pennsylvania  act  of  the  21st  March,  1772, 
sec.  11,  is  as  follows:  "And  to  prevent  vexatious 
replevins  of  distresses  taken  for  rent,  Be  it  enacted, 
that  all  sheriffs  and  other  officers,  having  authority 
to  serve  replevins,  may  and  shall  in  every  replevin 
of  a  distress  for  rent,  take,  in  their  own  names, 


268  or    THE   REPLEVIN-   BOND. 

from  the  plaintiff,  and  one  responsible  person  as 
surety,  a  bond  in  double  the  value  of  the  goods 
distrained  (such  value  to  be  ascertained  by  the 
oath  or  affirmation  of  one  or  more  credible  person 
or  persons,  not  interested  in  the  goods  or  distress ; 
which  oath  or  affirmation  the  person  serving  such 
replevin  is  hereby  authorized  and  required  to 
administer),  and  conditioned  for  prosecuting  the 
suit  with  effect  and  without  delay,  and  for  duly 
returning  the  goods  and  .chattels  distrained,  in  case 
a  return-  shall  be  awarded,  before  any  deliverance 
be  made  of  the  distress,  and  such  sheriff  or  other 
officer  as  aforesaid,  taking  any  such  bond,  shall,  at 
the  request  and  costs  of  the  avowant  or  person 
making  cognizance,  assign  such  bond  to  the 
avowant,  or  person  aforesaid,  by  endorsing  the 
same,  and  attesting  it  under  his  hand  and  seal,  iii 
the  presence  of  two  credible  witnesses ;  and  if  the 
bond  so  taken  and  assigned  be  forfeited,  the  avow- 
ant or  person  making  conusance  may  bring  an 
action,  and  recover  thereupon  in  his  own  name; 
and  the  court  where  such  action  shall  be  brought 
may,  by  a  rule  of  the  same  court,  give  such  relief 
to  the  parties  upon  such  bond,  as  may  be  agreeable 
to  justice  and  reason;  and  such  rule  shall  have  the 
nature  and  effect  of  a  defeasance  to  such  bond." 

The  statute  Westminster  II.,  ch.  2,  is  not  re- 
ported by  the  judges  to  be  in  force  in  Pennsyl- 


OF    THE   REPLEVi:Nr   BOND.  269 

vania;  and  the  act  of  March  21st,  1772,  applies 
exclusively  to  cases  of  replevin  of  a  distress  for 
rent.  It  has,  notwithstanding,  always  been  the 
practice,  in  that  State,  to  take  a  bond  from  the 
plaintiff  in  replevin,  in  every  case,  whether  on  a 
distress  for  rent  or  otherwise ;  a  course  which,  with 
the  condition  for  the  indemnification  of  the  sheriff, 
was  no  doubt  adopted  in  imitation  of  the  English 
practice  under  the  statute  of  Westminster,  and 
has  been  sanctioned  by  long  practice  and  many 
decisions,^  and  is  justified  by  the  words  of  the  Avrit, 
which  command  the  sheriff  to  deliver  the  goods  if 
the  plaintiff  makes  him  secure  of  prosecuting  his 
claim  with  effect,  and  is  supposed  to  have  a  warrant 
in  the  Act  of  1705,^  which  allows  the  writ  in  all 
cases  where  replevins  may  be  granted  by  the  laws 
of  England,  taking  security  as  the  said  law  directs. 

In  Massachusetts  and  Vermont,  the  statutes  for- 
bid the  service  of  the  writ,  unless  the  plaintiff,  or 
some  one  on  his  behalf,  shall  execute  and  deliver 
to  the  ofl&cer  a  bond  to  the  defendant,  with  suffi- 

^  Dunbar  v.  Dunn,  10  Price  61.  Whitenian  v.  Jones,  5  N. 
Hamp.  362.  Gibbs  v.  Bartlett,  2  W.  &  S.  29.  Neville  v.  Wil- 
liams, 7  Watts  421.  Short  u.  Hubbard,  2  Bin^.  348.  Opinion 
by  Park,  J. 

^  Appendix  No.  III.  Adams  Express  Co.  v.  Ta3dor,  9 
Phila.  R.  272. 


270  OF    THE   EEPLEVIIf   BON^D. 

cient  sureties,  to  be  approved  by  the  officer,  in  a 
penalty  double  the  value  of  the  property  to  be  re- 
plevied, with  condition  to  prosecute  the  replevin 
to  final  judgment,  and  to  pay  such  damages  and 
costs  as  the  defendant  shall  recover  against  him, 
and  also  to  return  the  said  property,  in  case  such 
shall  be  the  final  judgment.  A  sum  must  be  stated, 
it  is  not  enough  to  say  "double  the  value  the  goods 
to  be  replevied."'  But  the  writ  will  not  be  quashed 
because  the  bond  is  for  too  large  a  sum.^  In  Mis- 
souri and  Arkansas,  the  bond  is  given  to  the  sheriff*. 
In  Kentucky,  it  is  taken  in  the  name  of  the  com- 
monwealth. In  all  the  States,  indeed,  in  which  the 
law  has  been  codified,  a  bond  is  required  in  every 
case  before  the  execution  of  the  writ. 

It  has  been  held  that  the  sheriff*  is  not  bound  to 
pursue  strictly,  the  terms  of  the  statute  11  Geo. 
II.  And  that  the  bond  will  be  good,  although  it 
do  not  require  that  the  suit  should  be  prosecuted 
without  delay,  and  although  it  contains  an  under- 
taking to  indemnify  the  sheriff*,  and  although  it  be 
executed  by  one  surety  only.^     And  it  seems  a 

^  Case  V.  Pettee,  5  Gra^^  21.  Clark  v.  Connecticut  R.  R.  Co., 
6  Gray  363.     P.urple  v.  Purple,  5  Pick.  226. 

'  Clap  V.  Guild,  8  Mass.  153. 

'  Dunbar  v.  Dunn,  10  Price  54.  Austen  v.  Howard,  1  Taunt. 
28.      2  Marsh.  352.     1  Moore  68.     De  Bow  v.  Applegate,  3 


OF    THE   REPLEVIN   BOND.  271 

warrant  to  confess  jndg-ment  would  be  binding/ 
though  the  sheriff  might  not  be  justified  in  insist- 
ing on  such  a  provision. 

The  Pennsylvania  statute  requires  but  one 
surety.  Two  may  be  taken  f  and,  indeed,  are 
always  required  by  the  sheriff.  In  Philadelphia  if 
a  foreign  corporation  is  a  plaintiff  the  sheriff  re- 
quires the  bond  to  be  executed  under  a  special 
power  of  attorney  for  the  particular  case.  The 
power  is  annexed  to  the  bond  by  the  sheriff,  and 
passes  to  the  assignee  with  the  assignment  of  the 
bond.  Under  the  Maine  statute,  which  requires 
a  bond  with  sureties,  a  bond  with  one  surety  is 
void.^  But  a  mere  clerical  error,  by  which  the 
name  of  the  plaintiff  is  inserted  in  a  recital  where 
that  of  the  defendant  should  be,  will  not  vitiate 
the  bond.^      Under  the  Illinois  statute  it  is  essen- 

M'Cord  44.  Rider  v.  Edwards,  3  Mann.  &  Grang.  202.  See 
Morris  v.  Matthews,  2  Adol.  &  Ellis,  N.  S.  293.  Lamden  v. 
Conoway,  5  Harring.  1.  Claggett  v.  Richards,  45  N.  Hamp. 
860.  Cady  v.  Eggleston,  11  Mass.  282.  Korse  v.  Waterhouse, 
30  Conn.  129.     Shaw  v.  Tobias,  3  Corast.  188. 

1  Neville  u.  Williams,  T  Watts  421.  Shaw  v.  Tobias,  3  Conist. 
189.  Short  V.  Hubbard,  2  Bing.  348.  Franciscus  u.  Reigart, 
4  Watts  98. 

'  Saeltzer  v.  Ginther,  2  Miles  87. 

'  Greely  v.  Currier,  39  Maine  516. 

*  Green  v.  Walter,  37  Maine  25. 


272  OF  THE  EEPLEviisr  Bo:srD. 

tial  that  the  name  of  the  defendant  in  the  suit 
appears  m  the  bond/  In  New  York  the  law  re- 
qmres  two  sureties,  though  a  bond  with  one  is 
not  absohitely  void.  Two  are  necessary  for  the 
sheriff's  justification.^  In  Massachusetts  if  there 
is  but  one  surety  to  the  bond  tlie  suit  will  be  dis- 
missed if  a  motion  for  that  purpose  is  made  in 
proper  time.^ 

If  the  j)laintiff  make  default  in  any  of  the  pro- 
ceedings, or  do  not  prosecute  the  suit  with  effect, 
or  with  success,  which  is  the  same  thing,  the  de- 
fendant may  take  an  assignment  of  the  bond ;''  for 
the  conditions  of  the  bond  are  distinct  and  inde- 
pendent of  each  other,  and  a  breach  of  any  one  of 
them  will  occasion  a  forfeiture."  The  plaintiff 
cannot  pay  into  court  the  penalty  of  the  bond  in 

»  Arter  v.  The  People,  54  111.  228. 

^  Morris  v.  Yan  Voast,  19  Wend.  283.  Smith  v.  M'Fall,  18 
Wend.  521.  Milliken  v.  Selge,  6  Hill  623.  Shaw  v.  Tobias,  3 
N.  Y.  188. 

3  Clappin  V.  Thayer,  13  Gray  459.  Wolcott  v.  Mead,  12 
Met.  516,  518. 

'  Turnor  v.  Turner,  2  Brod.  &  B.  107.  Ex  parte  Boyle,  2  D. 
&  R.  13.  Perreau  v.  Bevan,  5  B.  &  C.  284.  Jackson  v.  Hanson, 
8  M.  «&  W.  47T. 

*  Perreau  v.  Bevan,  5  B.  &  C.  284.  8  D.  &  R.  88.  Gibbs  v. 
Bartlett,  2  W.  &  S.  33.     Wiseman  v.  Syme,  89  Ind.  250. 


OF    THE   EEPLEVIN^   BON^D.  273 

discharge  of  the  sureties,  and  so  make  them  wit- 
nesses.^ 


Some  hesitation  seems  to  have  been  felt,  as  well 
in  England  as  in  America,  as  to  the  effect,  upon  the 
liability  of  the  sureties  in  the  bond,  of  an  election 
by  the  defendant  to  j)roceed  under  the  statute  17 
Car.  II.  It  seems  finally  settled  in  England,  that 
the  sureties  are  not  discharged  by  such  an  elec- 
tion; and  the  same  conclusion,  it  is  presumed, 
must  follow  in  Pennsylvania  from  the  decision  in 
Gibbs  V,  Bartlett.  It  has  been  so  held  in  'New 
York.2 

It  was  held  by  Lord  Hardwicke,  that,  if  the 
defendant  proceeded  on  the  statute,  the  court  of 
King's  bench  would  not  compel  the  sheriff  to 
deliver  up  the  replevin  bond  to  enable  the  avowant 
to  sue  the  sureties,  and  he  said  he  did  not  remember 
one  instance  of  that  being  done.^  Wilkinson,  com- 
menting on  this,  adds,  "It  seems  since  to  have  been 
a  very  general  opinion,  that  if  the  defendant  in  re- 
plevin proceed  upon  the  statute,  for  the  arrearages 
of  rent  and  costs,  he  cannot  have  a  writ  of  retorno 

^  Cummings  v.  Gann,  2  P.  F.  Smith  488. 
^  Gould  V.  Warner,  3  Wend.  54.     Whitnej^  v.  Lehmer,  26 
Ind.  503. 

^  Combes  v.  Cole,  Rep.  Temp.  Hardwicke  352. 


274  OF    THE   REPLEVIN?'   BO]!^D. 

habendo,  nor  proceed  against  the  pledges ;"  but  he 
cites  the  late  case  of  Tiirnor  v.  Turner,^  as  a  de- 
cision to  the  contrary. 

The  whole  question  was  subsequently  reviewed 
by  the  court  of  king's  bench,  in  the  case  of  Perreau 
V.  Bevan,^  where  the  court,  by  very  satisfactory 
reasoning,  maintain  the  position  that  the  condition 
of  the  bond  is  broken  and  the  bond  forfeited,  as 
well  by  not  prosecuting  the  suit  with  effect,  as  by 
a  default  of  making  a  return  of  the  distress  on 
such  return  being  adjudged,  each  part  of  the  con- 
dition being  independent  of  the  other,  and  the 
bond  forfeited  by  a  failure  in  either.  The  court 
go  on  to  say,  "  The  case  of  Turnor  v.  Turner,  we 
think,  has  rightly  established  that  the  avowant, 
by  having  elected  to  proceed  under  the  statute  17 
Ch.  II.,  c.  7,  is  not  confined  to  his  execution  under 
the  statute,  but  might  proceed  upon  the  replevin 
bond,  if  it  had  been  assigned,  and  may  proceed 
against  the  sheriff  for  his  negligence  in  the  loss  of 
it,  notwithstanding  what  is  stated  to  have  been 
said  by  Bathurst,  J.,  in  Cooper  v.  Sherbrooke,  2 
"Wils.  116,  that  'by  statute  17  Car.  II.,  the  legis- 
lature  intended   that    the   proceeding    upon   that 

^  2  Brod.  &  B.  107.     See  Dunbar  v.  Dunn,  10  Price  59. 
'  5  Barn.  &  Cress.  284. 


OF    THE    REPLEVIN   BOXD.  275 

statute  by  writ  of  inquiry,  fieri-  facias,  and  elegit, 
should  be  final  for  the  avowant  to  recover  his 
damages,  and  that  the  plaintiff  should  keep  his 
cattle,  notwithstanding  the  course  of  awarding  a 
writ  de  retorno  habendo,  which  is  a  right  judg- 
ment, for  the  statute  has  not  altered  the  judgment 
at  common  law,  but  only  gives  a  further  remedy 
to  the  avowant.'  The  court  of  common  ])leas, 
however,  had  that  case  urged  to  them  as  in  point 
•to  that  effect;  but  after  taking  time  to  consider, 
upon  deliberation  and  reasons  stated  at  length  in 
the  report,  decided  contrary  to  that  doctrine  of 
Bathurst,  J.  ;  and  it  may  be  observed,  that  on 
adverting  to  the  preamble,  as  well  as  to  the  pro- 
visions of  that  statute,  the  legislature  meant  only 
to  facilitate  the  landlord's  remedy  against  his 
tenant,  and  give  him  additional  aid,  without  in 
any  respect  depriving  him  of  the  benefit  of  any 
remedy,  or  of  any  proceeding  he  was  entitled  to 
pursue  before ;  and  the  very  circumstance  of  the 
old  judgment  de  retorno  habendo  remaining  (which 
Bathurst,  J,,  allows,  and  which  is  allowed  on  all 
hands  to  be  the  right  judgment),  notwithstanding 
the  avowant  has  upon  the  verdict,  and  before  the 
giving  of  that  judgment,  elected  to  proceed,  and 
actually  proceeded  upon  that  statute,  seems  to 
show,  that  as  the  old  judgment  of  the  common 
law  was  not  gone  or  taken  away  by  that  election, 
19 


276  OF    THE    REPLEVIN   BOI^^D. 

SO  the  consequences  resulting  from  it  still  re- 
mained, if  the  avowant  should  have  occasion,  or 
should  still  choose  to  crave  them  in  aid.  A  sub- 
sequent case  of  Dunn  v.  Dunbar,  in  this  court,  in 
Hilary  term,  1820,  was  cited.  That  was  stated  to 
be  an  action  against  the  surety  in  a  replevin  bond, 
after  judgment  in  the  replevin  suit  for  the  arrears 
of  rent  under  the  statute.  On  a  motion  by  Mr. 
Marryat,  to  set  aside  the  proceedings  on  the  bond, 
because  the  surety  is  discharged  by  proceeding' 
under  the  statute,  and  on  citing  Tidd's  Practice 
1078,  where  there  is  a  dictum  to  that  effect,  but 
no  reference  to  authority,  Abbott,  C.  J.,  is  stated, 
in  a  note  of  that  case,  to  have  said,  that  the  statu- 
table remedy  has  not  taken  away  the  sureties'  re- 
sponsibility, and  in  the  absence  of  authority  the 
rule  was  refused;  but  if  authority  was  found,  it 
might  be  mentioned  again;  Holroyd  and  Best, 
justices,  were  present.  It  does  not  appear  to  have 
ever  been  mentioned  again.  Supposing  this  to  be 
a  correct  note  of  that  case,  and  that  it  did  not 
come  on  again,  it  is  in  support  of  our  present 
opinion.  The  case  indeed  of  Combes  v.  Cole, 
Rep.  Temp.  Hardw.  352,  was  cited,  but  that  case 
was  not  only  before  the  stat.  11  Geo.  II.,  where 
the  avowant  had  no  right  to  have  the  rej^levin 
bond  assigned  or  delivered  over  to  him,  as  he  has 
since  that  statute ;  and  that  case,  though  it  deter- 


OF    THE    REPLEVIN   BOND.  277 

mined  that  the  only  mode  of  proceeding  against 
the  sheriff,  before  the  statute  11  Geo.  IT.,  was  in 
the  mode  there  pointed  out,  does  not  estabUsh  that 
the  proceeding  under  the  statute  17  Car.  II.,  with- 
out avail,  would  have  been  a  defence  to  an  action 
on  the  replevin  bond,  if  the  sheriflp  had  permitted 
the  avowant  to  sue  on  it  in  his  own  name,  or  that 
if  it  would,  it  would  be  so  now,  since  the  statute 
11  Geo.  II.,  ch.  19 ;  but  if  it  would  go  to  this 
extent,  it  has  in  effect  been  since  overruled."^ 

The  supreme  court  of  Pennsylvania  at  one  time 
held,  that  it  was  a  discharge  of  the  replevin  bond 
to  take  a  judgment  by  confession  in  a  sum  certain 
or  on  the  statute  17  Car.  II.,  without  a  judgment 
of  retorno  habendo  at  the  common  law,  and  it  was 
said  that  the  condition  of  the  replevin  bond  was  to 
prosecute  with  effect,  and  return  the  goods,  in  case 
a  return  was  awarded ;  that  the  extent  of  the  obli- 
gation was  that  he  should  succeed,  or  comply  with 
a  judgment  of  redelivery ;  that  the  bond  contained 
a  condition,  with  alternate  branches  coupled  dis- 
junctively^, and  that  the  effect  of  rendering  one  of 
them  impossible  was  to  discharge  the  obligor,  and 
that  the  surety  did  not  undertake  that  his  princi- 
pal should  answei'  the  statutory  part  of  the  judg- 
ment.^ 

^  See  Morgan  v.  Griffith,  1  Mod.  380. 
.  '  Kirarael  v.  Kint,  2  Watts  431. 


278  or    THE   REPLEVi:?^   BO]^D. 

But  in  the  later  case  of  Gibbs  v.  Bartlett,  this 
ground  was  abandoned.^  In  this  case  the  action 
of  replevin  was  tried,  and  a  verdict  and  judgment 
rendered  for  plaintiff,  which  was  removed  to  the 
supreme  court  by  writ  of  error,  where  the  judg- 
ment was  reversed,  and  no  venire  de  novo  was 
awarded.  The  plaintiff  Gibbs,  defendant  in  the  re- 
plevin suit,  obtained  an  assignment  of  the  replevin 
bond,  and  brought  his  action  upon  it.  The  defend- 
ants relied  upon  the  fact,  that  although  the  judg- 
ment was  reversed,  yet  no  further  or  other  judg- 
ment or  order  of  the  said  court  was  rendered  or 
made  in  the  said  suit ;  and  on  demurrer  to  this 
plea,  the  court  below  gave  judgment  for  the  de- 
fendant, but  the  judgment  was  reversed.  In  the 
argument  before  the  supreme  court,  the  case  of 
Kimmel  v.  Kint  was  relied  upon  by  the  defendant 
in  error,  who  also  argued  that  he  had  prosecuted 
his  suit  with  effect,  as  he  had  everything  he  sought 
to  recover.  He  was  in  possession  of  the  property, 
and  no  remedy  given  to  his  adversary  to  deprive 
him  of  it.  The  opinion  of  Judge  Rogers  is  so  ful 
upon  this  point,  that  it  is  given  entire.  "The 
condition  of  the  replevin  bond  is,"  said  he,  "to 
prosecute  the  suit  with  effect,  and  make  return  of 

'  Gibbs  V.  Bartlett,  2  W.  &  S.  33.     See  Moore  v.  Bowmaker, 
1  Taunt.  97.     Brown  v.  Parker,  5  Blackf.  291. 


OF   THE   REPLEVIN"   BOND.  279 

the  goods  and  chattels,  if  a  return  thereof  shall  be 
adjudged.  It  is  not,  as  is  erroneously  supposed, 
in  Kimmel  v.  Kint  in  the  alternative,  with  alter- 
nate branches  coupled  disjunctively,  but  they  are 
distinct  and  independent  of  each  other,  and  a  breach 
of  one  of  them  will  occasion  a  forfeiture.  Thus  it 
has  been  ruled,  that  if  the  ijlaintift'  neglect  to  levy 
his  plaint  at  the  next  county  court,  or  if  he  make 
default  in  any  of  the  subsequent  proceedings,  or 
do  not  prosecute  the  suit  with  effect,  the  defendant 
may  take  an  assignment  of  the  bond.^  The  term 
prosecuting  with  effect,  means  with  success,^  and 
extends  to  one  continued  prosecution  from  the 
commencement  until  the  termination  of  the  suit. 
Thus,  where  to  debt  on  bond  the  defendant  pleaded 
that  he  had  prosecuted  the  suit  with  efiect  in  the 
county  coui't,  but  that  a  writ  of  error  had  been 
brought  in  the  court  above,  w^here  the  judgment 
had  been  reversed;  and  the  plaint  ff  replied,  that 
the  judgment  in  the  court  above  also  was,  that  the 
plaint  in  the  court  below  should  abate,  and  that 
there  should  be  a  return  irreplevisable;  upon  de- 
murring to  this  replication  the  court  held  that  the 
words,  '  to  prosecute  with  effect'  in  the  court  below, 

'  Turnor  v.  Turner,  2  Brod.  &  B.  112.  Ex  parte  Boyle,  2  D. 
&  R.  13.     s.  c.  4  Moore  616. 

^  Perreau  v.  Bevan,  5  B.  &  C.  284.  Jackson  v.  Hanson,  8 
M.  &  W.  477. 


280  OF    THE    EEPLEYIX   BOND. 

were  not  confined  to  the  prosecution  in  that  court 
only,  but  extended  also  to  the  prosecution  of  the 
writ  of  error,  as  that  was  part  of  the  suit  com- 
menced below.^  So  where  the  plaint  is  removed 
into  a  supreme  court,  the  condition  of  the  bond  is  not 
satisfied  by  having  prosecuted  the  suit  with  efiect 
in  the  county  court ;  but  the  plaintiff  must  follow 
it  into  the  court  above."^  It  has  also  been  held  that 
the  bond  may  become  forfeited,  by  not  prosecuting 
the  suit  without  delay.  Thus,  where  the  plaint 
was  levied  in  the  county  court,  and  two  years 
were  allowed  to  elapse  without  any  further  steps 
being  taken,  it  was  held  the  obligee  might  recover, 
although  judgment  of  non  pros  was  never  signed 
in  the  county  court  ;^  and  where  the  plaintiff  in 
replevin  is  guilty  of  a  breach  of  the  condition,  by 
not  prosecuting  his  suit  without  delay,  it  need  not 
appear  that  the  suit  is  determined/  The  same  rule 
holds  good  where  a  suit  has  been  discontinued.^ 
In  the  cases  cited,  no  judgment  of  de  retorno  ha- 
bendo  was  entered.     Of  course  such  a  judgment 

^  Chapman  v.  Butcher,  Carth.  248,  519.  Butcher  v.  Portei*, 
1  Show.  400.     Gwillim  v.  Holbrook,  1  Bos.  &  Pull.  410. 

^  Vaughan  v.  Norris,  Cas.  Temp.  Hard.  137.  T  Comyn's  Dig. 
269. 

'  Axford  V.  Perrett,  4  Bing.  586. 

*  Harrison  v.  Wardle,  5  B.  &  Adol.  146. 

5  Hurlstone  on  Bonds  68.     Badlam  v.  Tucker,  1  Pick.  286. 


OF    THE   REPLEVI:N'   BOND.  281 

is  not  indispensable  to  warrant  a  recovery  on  the 
replevin  bond/  as  seems  to  have  been  the  opinion 
of  the  conrt  in  Kimmel  v.  Kint.  It  is  admitted, 
that  the  writ  of  de  retorno  habendo  is  not  in  nse. 
Indeed  it  is  doubtful  whether  such  a  writ  was  ever 
issued  in  this  State.^  It  would,  therefore,  seem  to 
be  perfectly  nugatory  to  send  this  case  back,  that 
such  a  judgment  may  be  entered;  it  would  increase 
the  trouble  and  expense  for  no  manner  of  advan- 
tage to  any  person;  for  although  it  is  said,  that 
the  surety  should  not  be  deprived  of  an  opportunity 
to  discharge  himself  by  a  return  of  the  goods,  yet 
it  seems  very  questionable  whether,  at  any  time, 
the  defendant  could  save  the  forfeiture  by  a  tender 
of  return  of  the  goods.  The  judgment  de  retorno 
habendo  is  not  intended  for  the  benefit  of  the  de- 
fendant, but  of  the  plaintiff  in  the  replevin  bond, 
who,  in  some  cases,  perhaps,  might  prefer  a  return 
of  the  goods  to  the  damages  assessed  by  a  jury. 
It  would  be  anything  but  an  act  of  justice  to  per- 
mit a  person,  who  has  wrongfully  deprived  another 
of  his  goods,  and  retained  them  in  his  possession 
until  they  were  nearly  destroyed  by  time  and  use, 

^  Waterman  v.  Yea,  2  Wils.  41. 

^  See  Com.  v.  Rees,  3  Whart.  124.  In  the  case  on  which  that 
action  was  founded,  a  retorno  habendo  is  said  to  have  issued  ; 
and  indeed,  there  are  numerous  instances  of  the  writ  on  the 
dockets  of  the  courts  in  tlie  city  and  county  of  Philadelphia. 


282  OF    THE   REPLEVIN    BOND. 

afterwards,  when  judgment  was  rendered  against 
him  for  his  wrongful  act,  to  save  a  forfeiture  of  the 
bond  by  an  offer  to  return  the  article  in  its  depre- 
ciated condition.     IS'or  can  the  sureties  be  placed 
in  any  better  situation  than  the  principal.     But, 
be  this  as  it  may,  we  think  it  very  clear  that  the 
judgment  of  the  court,  in  the  case  at  bar,  was  er- 
roneous.    The  case  is  this:    Alexander  ]S"eely  & 
Co.  brought  replevin  against  Eli  Gibbs,  who  is 
the  present  plaintiif.      N^eely  obtained  judgment 
against  Gibbs  in  the  court  of  common  pleas,  which 
was   removed   by   writ   of  error   to   the    supreme 
court.     On  argument,  the  judgment  of  the  court 
of  common  pleas  was  reversed,  but  no  venire  de 
novo  was  awarded.     And  the  reason  of  this  entry 
appears,  in  the  report  of  the  case  (7  Watts  305), 
to  have  been  because,  upon  the  admitted  state  of 
facts,  the  plaintiff  could  not  recover.     The  judg- 
ment was  advisedly  entered  'judgment  reversed,' 
without  more ;  for,  according  to  our  practice,  which 
saves  expense  and  trouble,  such  a  judgment  is  a 
final  judgment.      Either  party  was  at  liberty  to 
ask  for  a  venire  de  novo;  but  both  were  content 
with  the  judgment.     How,  then,  with  this  entry 
on  the  record,  can  the  defendant  say  that  he  has 
performed  the  condition  of  his  bond,  which  obliges 
him  to  prosecute  his  suit  with   effect,  and   with- 


OF    THE    EEPLEVllSr    BOND.  283 

out  delay?     The  case  comes  directly  within  the 
principles  of  the  cases  cited  above."^ 

In  the  same  spirit  it  has  been  also  held,  that,  if 
the  plaintiff  in  replevin  gives  bond  in  the  usual 
form,  and  the  defendant  claims  the  property  and 
retains  it,  giving  bond,  and  afterwards  arbitrators 
award  no  cause  of  action,  the  plaintiff^s  surety  is 
liable  on  the  bond  for  the  costs  of  the  replevin 
suit.'^  If  the  plaintiff's  neglect  to  prosecute  the 
suit  has  been  occasioned  by  the  act  of  the  defen- 
dant, as  by  his  not  appearing  to  the  summons  f  or, 
if  the  proceedings  have  been  stayed  by  injunction, 
and  during  that  period  the  plaintiff  dies,  the  defen- 
dant will  not  be  entitled  to  an  assignment  of  the 
bond.* 

An  agreement  between  the  plaintiff,  and  defen- 
dant in  replevin,  entered  of  record,  by  which  the 
plaintiff',  who  had  been  tenant  to  the  defendant, 
agreed  that  all  proceedings  in  the  suit  should 
cease,  that  the  plaintiff  should  pay  the  defendant 
a  certain  sum,  that  each  party  should  pay  their 

1  Gibbs  V.  Bartlett,  2  W.  &  S.  33. 
^  Tibball  v.  Calioon,  10  Watts  232. 
'  Seal  V.  Phillips,  8  Price  IT- 

*  Orniond  v.  Brierly,  12  Mod.  380.  s.  c.  Garth.  519.  See 
Sands  u.  Fritz,  3  Weekly  Notes  531. 


284  OF    THE    EEPLEVII^^   BOND. 

own  costs,  and  that  the  replevin  bond  should  stand 
as  a  security  for  the  observance  of  these  terms,  is 
evidence  of  the  determination  of  the  suit,  and  that 
the  plaintiff  did  not  prosecute  it  with  effect.  And 
on  failure  to  comply  on  the  part  of  the  plaintiff, 
the  sureties  in  the  bond  are  liable.  But  they  are 
not  bound  by  the  amount  agreed  to  be  paid  by  the 
plaintiff  in  replevin.^ 

Upon  the  neglect  of  the  plaintiff  to  comply  with 
the  conditions  of  the  bond,  it  may  be  assigned 
either  to  the  avowant  or  to  the  person  making 
cognizance,  when  there  is  no  avowant ;  or  to  both 
the  avowant  and  the  person  making  cognizance, 
who  may  sue  jointly  upon  it.  The  assignment 
may  be  to  the  avowant  only,  though  there  be  a 
conusor :  but  it  seems  doubtful  whether  there  can 
be  an  assignment  to  the  conusor  alone,  where  there 
is  an  avowant.^ 

In  Sands  v.  Fritz,  per  "Woodward,  J.,  Error  to 
Common  Pleas,  I^o.  3,^  the  court  express  a  grave 
doubt  whether  the  action  on  the  replevin  bond  can 

1  Hallett  V.  Mountstephen,  2  Dow.  &  Ry.  343.  Sands  v.  Fritz, 
3  Weekly  Notes  531. 

2  Page  V.  Earner,  1  Bos.  and  Pul.  378.  Archer  v.  Dudley,  1 
Bos.  &  Pul.  381,  n.  a.     Phillips  v.  Price,  3  M.  S.  180. 

3  3  Weekly  Notes  531. 


OF    THE    REPLEVIN    BOND.  285 

properly  be  brought  within  the  operation  of  any  of 
the  statutes  authorizing  the  entry  of  judgment  for 
want  of  an  affidavit  of  defence. 

Where  the  replevin  is  of  a  distress  for  rent,  and 
the  bond  is  taken  under  the  11  Geo.  II.,  or  under 
the  Pennsylvania  act  21st  March,  1772,  and  is 
assigned  by  the  sheriff  under  hand  and  seal  in  the 
presence  of  two  credible  witnesses,  the  assignee 
may  sue  thereon  in  his  own  name.  But  where  the 
replevin  is  not  of  a  distress  for  rent,^  or  where  the 
bond  is  not  taken  under  the  acts  above  named, 
the  action  should  be  brought  in  the  name  of  the 
sheriff.'-^  The  authority  given  by  the  11  Geo.  IT. 
to  the  assignee  to  sue  in  his  own  name,  does  not 
a]3ply  to  those  cases.  And  the  bond,  not  being  a 
bond  for  the  payment  of  money,  is  not  within  the 
act  of  28th  May,  1715,  and  so  it  has  been  ruled  in 
the  district  court,  and  at  nisi  prius  in  the  county 
of  Philadelphia. 

"When  the  plaintiff  in  replevin  is  guilty  of  a 
breach  of  the  condition,  by  not  prosecuting  his  suit 

^  Knapp  V.  Colburn,  4  Wend.  616.  Tibball  v.  Calioon,  10 
Watts  232.  City  Council  v.  Price,  1  McCord  299.  Waples  v. 
Mcllvaine,  5  Har.  381.     Acker  v.  Finn,  5  Hill  293. 

'  Austen  v.  Howard,  t  Taunt.  28.     Wilk.  Repl.  116. 


286  or    THE   REPLEVII^'   BOND. 

without  delay,  it  need  not  appear  that  the  suit  is 
determined.^ 

Damages  may  be  recovered  against  the  sureties 
to  the  amount  of  the  penalty  in  the  bond  for  the 
value  of  the  property,  and  for  the  damages  found 
in  favor  of  the  defendant,  and  for  costs  f  and  after 
some  discussion,  the  English  courts  appear  to  have 
agreed  that  in  the  action  for  taking  insufficient 
sureties,  the  sheriff  is  liable  to  the  same  extent; 
Eyre,  C.  J.,  saying :  "  The  justice  and  good  sense 
of  the  case  seem  to  be,  that  the  sheriff  should  be 
liable  no  further  than  the  sureties  would  have  been, 
if  the  sheriff  had  done  his  duty,  that  the  responsi- 
bility of  the  sureties  was  limited  by  11  Geo.  II.,  to 
double  the  value  of  the  goods  distrained,  and  that 
sum  ought  to  be  the  measure  of  damages  against 
the  sheriff."'^  In  a  previous  case,  in  the  court  of 
king's  bench,  it  had  been  held  that  damages  could 
not  be  recovered  beyond  the  value  of  the  distress  f 

"■  narrison  v.  Waixlle,  5  B.  &  Adol.  146.  Axforcl  v.  Perrett, 
4  Bing,  586.     Wright  v.  Quirk,  105  Mass.  44,  48. 

^  Bramscombe  v.  Scarborough,  6  Adol.  &  Ellis  N.  S.  13. 
Gainsford  v.  Griffith,  1  Wms.  Saund.  58,  n.  1.  Balsley  v.  Hoff- 
man, 1  Harris  603.     Tibbies  v.  O'Connor,  28  Barb.  538. 

2  Evans  v.  Brander,  2  H.  Bl.  548.  Jeffrey  u.  Bastard,  4  Adol. 
&  Ellis  823.     Paul  v.  Goodluck,  2  Bing.  N.  C.  220. 

*  Yea  V.  Lethbrldge,  4  T.  R.  433. 


OF    THE    REPLEVIN^   60:^^0.  287 

and  in  an  intermediate  case,  Lord  Longliborough 
held  that  damages  might  be  recovered  beyond  the 
penalty  of  the  bond/  In  Pennsylvania  the  conrts 
seem  to  have  followed  the  court  of  common  pleas 
in  Evans  v.  Brander,  and  have  decided  that  the 
measure  of  damages  in  an  action  against  the  sheriff 
for  taking  insufficient  sureties,^  and  also  in  an 
action  against  the  sureties  in  the  replevin  bond,  is 
the  value  of  the  property,  and  damages  for  the  de- 
tention, usually  interest  from  the  time  of  the  taking 
and  costs.^  In  cases  of  fraud,  or  wanton  injury, 
damages  beyond  the  value  and  interest  may  be 
given,^  and  in  Gibbs  v.  Bartlett  they  held  that  the 
value  in  the  writ  was  only  prima  facie  evidence  of 
the  value  of  the  goods/ 

By  the  statute  of  Westminster,  the  liability  of 
the  sheriff  for  not  taking  pledges  according  to  its 
provisions,  is  confined  to  the  price  of  the  beasts. 
The  statute  of  Geo.  II.,  it  is  believed,  was  intended 
rather  as  an  improvement  and  modification  of  the 

^  Concanen  v.  Lethbridge,  2  H.  Bl.  40. 

*  Murdoch  v.  Will,  1  Dull.  341. 

'  Gibbs  V.  Bartlett,  2  W.  «fe  S.  29.  M'Cabe  v.  Morehead,  1 
W.  &  S.  513.  Balsley  v.  Hoffman,  1  Harris  604.  Arnold  v. 
Bailey,  8  Mass.  145. 

*  M'Cabe  v.  Morehead,  1  W.  &  S.  513.  Brizsee  and  Torrence 
V.  Maybee,  21  Wend.  144. 

^  2  W.  &  S.  35.     Wiseman  v.  Lynn,  39  lud.  250. 


288  OP    THE    EEPLEVIN^   BOKD. 

old  security,  than  as  the  creation  of  a  new  one. 
As  the  real  damage,  which  the  defendant  has  sus- 
tained, is  the  deprivation  of  his  property  from  the 
time  of  the  replevin,  or  if  the  replevin  is  of  a  dis- 
tress for  rent,  the  deprivation  of  so  much  property 
from  application  to  the  payment  of  his  rent,  the 
true  measure  of  that  damage,  it  would  seem,  is  the 
value  of  the  property  at  the  time  of  the  replevin, 
with  interest  from  that  date,  and  the  costs  of  suit ; 
or,  if  the  replevin  is  of  a  distress  for  rent,  and  the 
goods  taken  exceed  in  value  the  rent  due,  then  for 
the  amount  of  the  rent.  On  the  payment  of  that 
sum,  the  courts  will  stay  the  proceedings  on  the 
bond.^ 

The  confusion,  if  any  there  be,  seems  to  have 
arisen  from  confounding  the  extent  of  the  sureties' 
liability  with  the  amount  the  defendant  in  replevin, 
the  plaintiff  in  the  suit  on  the  bond,  is  damnified. 
The  plaintiff  in  the  suit  on  the  replevin  bond,  as 
against  the  plaintiff  in  replevin,  is  entitled  to  the 
value  of  his  property  with  damages  for  its  deten- 
tion, usually  equal  to  the  interest  on  its  value  and 
costs ;  except  in  cases  where  the  replevin  is  of  a 
distress  for  rent,  in  which  case  he  is  entitled  to  the 

^  Gingell  v.  Turnbull,  3  Bing.  N.  C.  881.  Brarascombe  v. 
Scarborough,  6  Adol.  &  Ellis,  N.  S.  13.  Gould  v.  Warner,  3 
Wend.  54. 


OF  THE  REPLEvii*^  bo:n"d.  289 

value  of  the  distress,  if  his  rent  arrear  equalled 
that  amount,  if  not  to  the  value  of  his  rent  arrear 
with  damages  and  double  costs  of  suit.  If  his  rent 
arrear  was  greater  than  the  value  of  the  distress, 
he  was  not  entitled  to  anything  beyond  that  value. 
The  liabilit}^  of  the  surety  in  replevin  is  limited  by 
the  penalty  of  his  bond ;  the  preceding  observa- 
tions show  that  his  liability  may  be  less  than  that 
amount ;  it  cannot  exceed  it.^  The  foregoing  cases 
would  seem  to  show  that  w^iether  the  verdict  and 
judgment  in  Gather  v.  Bray,  reported  in  5  Weekly 
!N^otes  142,  would  avail  the  landlord  ultimately, 
would  depend  on  the  sufficiency  of  the  bondsmen, 
not  upon  the  form  of  the  judgment,  and  that  would 
seem  to  be  what  was  meant  to  be  conve^^ed  by  the 
language  of  the  Supreme  Court. 

In  an  action  on  the  replevin  bond,  where  the  re- 
plevin was  of  a  distress  for  rent,  the  district  court 
for  the  city  and  county  of  Philadelphia  held,  that 
the  rent  in  arrear  was  the  real  subject  of  contro- 
versy ;  where  that  was  under  one  hundred  dollars, 
the  court  had  not  jurisdiction.^ 

1  Hunt  V.  Round,  2  Dowl.  558.  Ward  v.  Henley,  1  Y.  &  J. 
285.  Hefford  v.  Alger,  1  Taunt.  218.  Gould  v.  Warner,  3 
Wend.  54. 

'  Freedenburg  v.  Meeter,  7  Penn.  Law  Jour.  244. 


290  OP    THE   REPLEVIN   BON^D. 

In  the  case  of  Gingell  v,  Turnbull,  a  rule  nisi  \ 
after  judgment  by  default  in  an  action  on  a  re- 
plevin bond  taken  in  the  penalty  of  125  ponnds,  to 
stay  proceedings  upon  payment  into  court  of  62 
pounds,  at  which  the  goods  distrained  had  been 
valued  by  a  surveyor  employed  by  the  sureties, 
too^ether  with  the  costs ;  the  rent  in  arrear  was 
104  pounds.  Plaintiff  showed  cause  on  affidavit 
that  the  goods  were  worth  more  than  enough  to 
cover  the  rent  and  all  charges,  but  objected  to  try 
the  value  of  the  goods  on  affidavit ;  whereupon, 
the  court  made  the  rule  absolute,  on  paying  into 
court  the  value  of  the  goods,  together  with  the 
costs ;  the  value  of  the  goods  to  be  ascertained  by 
the  prothonotary/ 

Under  the  clause  in  the  act  which  declares  that 
the  court  in  which  the  action  on  the  replevin  bond 
shall  be  brought,  may,  by  a  rule  of  the  same  court, 
give  such  relief  to  the  ^^arties  upon  such  bond  as 
may  be  agreeable  to  justice  and  reason,  and  such 
rule  shall  have  the  nature  and  effect  of  a  defea- 
sance to  such  bond;  the  courts  will  interfere  to 
prevent  the  accumulation  of  costs,  where  several 
actions  are  brought  against  the  principal  and  sure- 
ties.    In  a  case  where  three  actions  were  brought 

'  Gingell  v.  Turnbull,  3  Bing.  N.  C.  881. 


OP    THE    REPLEVIN   BOXD.  291 

on  one  replevin  bond  against  the  principal,  and 
each  of  the  two  sureties,  and  a  rule  had  been  ob- 
tained to  stay  all  proceedings  in  the  three  actions, 
on  payment  of  costs  in  the  first  action  only,  or 
upon  such  other  terms  as  the  court  should  direct ; 
the  court  made  a  rule,  that  all  proceedings  in  the 
three  actions  should  be  stayed  on  payment  of  the 
rent  and  costs ;  otherwise,  the  rule  to  be  discharged, 
and  the  plaintiff  to  j^roceed  in  one  action,  and  the 
defendants  in  the  other  two  actions  to  be  bound 
by  the  event  of  that  one/ 

The  court  will  not  stay  the  proceedings  on  a 
replevin  bond,  unless  it  clearly  appears  that  the 
application  is  made  on  behalf  of  the  sureties  and 
not  of  the  principal.^  Where  one  of  the  sureties 
in  a  replevin  bond  was  a  material  witness  in  the 
cause,  the  court  allowed  another  to  be  substituted 
on  his  being  approved  of  by  the  prothonotary,  and 
notice  given  to  the  defendants'  attorney.^ 

^  Bartlett  v.  Bartlett,  4  Mann.  &  Grang.  269. 
^  Wharton  v.  Blacknell,  12  Mees.  &  Wells.  558. 
^  Bailey  v.  Bailey,  1  Bing.  92.     Amos  v.  Ginnett,  4  Scam. 
440. 

20 


CHAPTER    XYI. 

OF  THE  declaratio:n-  and  pleadii^gs  i?^  the 

ACTION    ox    THE   KEPLEVUsT   BOND. 

The  declaration  on  the  replevin  bond  concisely 
states  the  proceedings  in  replevin,  the  failure  in 
fulfilling  the  condition  of  the  bond,  and  the  assign- 
ment of  the  bond.  If  the  distress  were  made  by 
the  plaintiff  as  bailiff  of  another,  it  is  usually  so 
stated  ;^  but  in  a  declaration  by  two  persons,  it  is 
not  necessary  to  state  that  the  one  distrained  as 
bailiff,^  nor  need  the  declaration  set  out  the  goods 
distrained ;  and  if  it  state  the  bond  was  conditioned 
for  making  a  return  of  the  goods  in  the  condition 
mentioned,  and  thereupon  the  sheriff  replevied  the 
same,  it  sufficiently  appears  the  bond  was  condi- 
tioned for  a  return  of  the  goods  distrained.^  The 
condition  should  be  correctly  stated.^  The  decla- 
ration is  not  double,  although  both  parts  of  the 

^  Dias  V.  Freeman,  5  T.  R.  195.     See  Appendix  for  form. 

^  Phillips  V.  Price,  3  M.  &  S.  180. 

'  Phillips  V.  Price,  3  M.  &  S.  180. 

*  Halstead  v.  Abrams,  3  Taunt.  81.  Glover  v.  Coles,  1  Bing.  6. 


OF  THE  DECLARATION  AND  PLEADINGS,  ETC.      293 

condition  are  negatived,  and  if  a  sufficient  breach 
appear,  the  plaintiff  will  be  entitled  to  recover, 
although  the  breach  is  not  formally  assigned/ 

Non  est  factum,  which  puts  m  issue  the  execu- 
tion of  the  bond  or  the  validity  of  its  execution  in 
law,  is  the  general  issue.^  Under  the  plea  of  pay- 
ment with  notice,  any  equitable  defence  may  be 
given  in  evidence  in  Pennsylvania.  Thus,  where 
two  sureties  are  named  in  the  body  of  the  bond, 
and  but  one  executes  it,  this  fact  may  be  given  in 
evidence  under  the  plea  of  payment,  and  is  a  de- 
fence, unless  it  appear  that  the  defendant  waived 
the  execution  by  the  other  surety.^  In  Austen  v. 
Howard,**  a  plea  that  the  bond  purported  to  be 
entered  into  by  two  sureties,  but  was  executed 
only  by  one,  was  held  to  be  bad,  but  by  Burrough, 
justice,  this  was  from  a  defect  in  pleading.^ 

'Now  damnificatus  is  a  proper  plea  wiien  the 
condition  of  the  bond  is  merely  to  indemnify  and 
save  harmless.  It  is  not  so  when  the  condition  is 
to  discharge  or  acquit  the  plaintiff  from  liability 

^  Perreau  v.  Bevan,  5  B.  &  C.  284. 

'  Steph.  on  Plead.  116.     Zeigler  v.  Sprenkle,  7  W.  &  S.  175. 

^  Sharp  V.  United  States,  4  Watts  21. 

*  7  Taunt.  28. 

^  Austin  u.  Howard,  7  Taunt.  327. 


294     OF  THE  DECLARATION  AND  PLEADINGS,  ETC. 

as  from  a  bond  or  other  thing  done  or  given  by 
him  creating  a  hability.  In  this  latter  case,  the 
defendant,  in  pleading,  must  set  forth  affirmatively 
the  special  manner  of  performance,  and  show  that 
the  plaintift'  has  been  acquitted  of  his  liability, 
and  in  what  way  it  has  been  effected.^ 

All  matters  of  defence  may  be  pleaded  specially. 
Plea  by  surety  that  the  judgment  was  obtained 
against  the  principal  by  fraud,  namely,  by  the 
plaintiff  in  that  suit  fraudulently  procuring  the 
defendant  to  confess,  and  by  the  defendant  falsely 
and  fraudulently  confessing  the  action,  is  bad  on 
demurrer,  unless  it  allege  it  was  for  the  purpose 
of  defrauding  the  sureties.^  It  is  not  a  good  plea, 
to  an  action  on  the  bond  brought  after  an  award, 
that  the  proceedings  in  replevin  were  suspended 
by  agreement  during  an  arbitration,  to  which  were 
referred  the  time  of  payment  of  the  rent,  with  cer- 
tain claims  of  the  tenant  on  the  landlord  for  dam- 
ages, with  liberty  for  the  tenant  to  deduct  them, 
when  awarded  from  the  rent.^  It  seems  that  it 
would  be  ground  for  relief  in  equity,  or   if  the 

1  Neville  v.  Williams,  T  Watts  421. 

^  Moore  v.  Bowmaker,  7  Taunt.  97.     Hutton  v.  Denton,  2 
Ind.  644.     Sherry  v.  Foresman,  6  Blackf.  56. 
3  lb.     Aldridge  v.  Harper,  10  Bing.  118. 


OP  THE  DECLARATION^  AlfD  PLEADINGS,  ETC.      295 

application  was  by  motion/  If  the  replevin  was 
of  a  living  animal  which  died  before  judgment  in 
the  replevin  suit  without  the  fault  of  the  plaintiff, 
that  has  been  held  in  N^ew  York  to  be  a  good 
defence  to  an  action  on  the  bond.^ 

When  the  declaration  stated  the  judgment  in 
the  replevin  suit  to  have  been  a  retorno  habendo, 
awarded  for  want  of  a  plea  to  an  avowry,  a  plea 
that,  after  the  judgment  for  a  return,  a  writ  to 
inquire  of  the  arrears  of  the  rent,  and  the  value  of 
the  cattle,  goods,  &c.,  distrained,  was  prayed  by 
the  avowant,  granted,  and  executed,  and  that 
thereupon  avowant  had  judgment  to  recover  the 
arrears  of  rent  found,  together  with  a  sum  for  his 
costs  and  damages,  was  held  ill  on  demurrer ;  and 
the  execution  of  such  a  writ  is  no  discharge  of  the 
sureties.^ 

By  the  act  of  the  11th  of  April,  1848,  where  a 
judgment  has  been  obtained  since  the  passage  of 

^  Archer  v.  Hale,  4  Bing.  464.  Aldridge  v.  Harper,  10  Bing. 
118.     See  Donnelly  v.  Dunn,  2  Bos.  &  Pul.  45. 

^  Carpenter  v.  Stevens,  12  Wend.  589;  but  see  Gentry  v. 
Bargiss,  5  Monroe's  Rep.  116,  where  the  contrary  was  held, 

^  Turnor  v.  Turner,  2  Brod.  &  B.  108.  See  Gibbs  v.  Bartlett, 
2  W.  &  S.  29.  Perreau  v.  Bevan,  5  B.  &  C.  284,  and  see  ante, 
pages  271,  272,  &c. 


296      OF  THE  DECLAEATIOK  AND  PLEADI:N^GS,  ETC. 

the  act,  against  two  or  more  joint  or  several  obli- 
gors, the  death  of  one  or  more  of  the  defendants 
shall  not  discharge  his  or  their  estate  or  estates, 
real  or  personal,  from  the  payment  thereof;  but 
the  same  shall  be  payable  by  his  or  their  executors 
or  administrators,  as  if  the  judgment  had  been 
several  against  the  deceased  alone.^  This  does 
not  seem  to  reach  the  case  of  a  death  pending  the 
action,  in  which  case  the  remedy  against  the  assets 
of  the  deceased  will  still  be  gone.^ 

It  is  held  in  Indiana  that  if  the  replevin  suit  ends 
without  deciding  the  right  of  property  the  defen- 
dant may  plead  in  bar  property  in  himself  as  to  all 
but  nominal  damages.^ 

^  Pamph.  Laws  of  Pa.,  1848,  536.  Brewster's  Admr.  v.  Ster- 
rett,  8  Casey  115.     Moore's  Appeals,  10  Casey  411. 

'  Walter  v.  Ginrich,  2  Watts  204.  Finney  v.  Cochran,  1  W 
&  S.  112. 

'  Stockwell  V.  Byrne,  32  Ind.  6. 


CHAPTER    XYII. 

or  THE  PROOEEDIN^GS  AGAINST   THE    SHERIFF  FOR 
TAKING   INSUFFICIENT    PLEDGES. 

If  the  sheriff  neglect  to  take  a  bond,  the  court 
will  not  grant  an  attachment  against  him,^  neither 
will  they  order  him  to  pay  the  costs  recovered  by 
the  defendant  in  replevin,  but  the  proper  remedy 
is  to  proceed  against  him  by  an  action  on  the  case.^ 
The  same  action  lies  for  taking  insufficient  pledges.'^ 
And  this  action  is  maintainable  even  after  the 
avowant  or  person  making  cognizance  has  taken 
an  assignment  of  the  replevin  bond,  and  sued  the 
principal  and  sureties :  for  such  assignment  is  no 
waiver  of  any  proceedings  against  the  sheriff.^ 
The  supreme  court  of  Pennsylvania  have  restricted 
this  rule  so  far,  as  to  suspend  the  action  against 
the  sheriff,  while  proceedings  towards  satisfaction 
by  judgment  and  execution  against  the  sureties 

^  Twells  V.  Colville,  Willes  375.     Rex  v.  Lewis,  2  T.  R.  617. 
"  Tesseytnan  v.  Gildart,  4  Bos.  &  Pul.  292.     Cro.  Car.  446. 
Sir  Wm.  Jones  378. 
'  2  Inst.  340. 
*  I  Wms.  Saund.  Rep.  195 ;  or  Myers  v.  Clark,  3  W.  &  S.  539. 


298      OF    PROCEEDIISrGS   AGAINST    THE    SHERIFF 

are  in  progress.^  The  conusor  must  bring  the 
action  if  there  is  no  avowant.^  In  Pennsylvania, 
instead  of  proceeding  by  action  on  the  case,  the 
sheriif  and  his  sureties  may  be  sued  on  his  official 
bond.'^ 

There  is,  in  Pennsylvania,  as  we  have  seen,  no 
legislative  provision  by  which  the  sheriff  is  required 
to  take  a  bond  from  the  plaintiff  in  replevin,  before 
executing  the  w^rit,  except  in  cases  of  replevin  of 
a  distress  for  rent.  This  fact  seems  to  have  been 
overlooked  in  part  of  the  reasoning  in  the  case  of 
Cummings  v.  Gann/  The  sheriff',  nevertheless, 
always  takes  such  bonds,  and  they  have  been  fre- 
quently assigned  and  sued  upon,  where  the  replevin 
was  not  of  a  distress.  AVhether  the  sheriff  would 
be  liable  to  an  action  on  the  case,  if  he  omitted  to 
take  such  a  bond,  or  if  the  sureties  proved  insuffi- 
cient, does  not  appear  to  have  been  agitated.  In 
Pearce  v.  Humphreys,  where  the  plaintiff  was 
allowed  to  recover  in  such  an  action,  the  objection 
was  not  taken ;  on  the  contrary,  the  sheriff's  obli- 

^  Commonwealth  v.  Rees,  3  Whart.  124. 

^  Archer  v.  Dudley,  1  Bos.  &  Pul.  378. 

^  Act  21st  March,  1803,  4  Sm.  Laws  45.  Act  14th  June, 
1836,  Paraph.  L.  637.  Myers  v.  Com.,  2  W.  &  S.  60.  Com.  v. 
Rees,  3  Whart.  124. 

*  2  P.  F.  Smith,  484,  488. 


rOR   TAKIN'G   IN^SUrnCIENT   PLEDGES.        290 

gation  to  take  the  bond  seems  to  have  been  assumed 
on  all  hands.^ 

It  is  true  the  act  of  1705  allows  writs  of  reple- 
vin in  all  cases  whatsoever  where  replevins  may  be 
granted  by  the  laws  of  England,  taking  security 
as  the  law  directs  5  but  this  seems  hardly  to  meet 
the  case,  the  security  there  referred  to  being  the 
ordinary  pledges  to  prosecute/ 

According  to  the  more  recent  authorities  in 
England,  and  in  some  of  the  United  States,  the 
sheriff  is  not  responsible  for  the  sufficiency  of  the 
sureties  in  replevin  at  the  end  of  the  proceedings. 
It  is  enough  if  they  were  apparently  responsible  at 
the  time  of  taking  them.^  But  he  is  responsible 
if  either  of  the  sureties  is  insufficient,^  and  is  also 
liable  for  negligence  if  he  lose  the  bond.^  2*^otice 
of  the  insufficiency  of  the  sureties,  and  general 
reputation  of  their  want  of  credit  in  the  neighbor- 
hood, are  alike  evidence  against  him."^  In  Penn 
sylvania,  the  sheriff*  is  held  to  a  much  more  rigid 
accountabilit}^  for  he  is  answerable  for  the  suffi- 

'  14  S.  &  R.  23.     Balsey  v.  Hoffman,  1  Harris,  606. 

-  Hindle  v.  Blades,  5  Taunt.  225.  Sutton  u.  Wa^'te,  8  Moore 
27.  Commonwealth  v.  Thomson,  3  Dana  301.  Jeffrey  v.  Bas- 
tard, 4  A.  &  E=  823. 

^  Scott  V.  Waithman,  3  Stark.  168. 

*  Perreau  v.  Bevan,  5  Barn.  &  Cress.  284. 


300      OF    PROCEEDINGS    AGAINST    THE    SHERIFF 

ciency  of  the  sureties  in  the  replevin  hond,  at  the 
termination  of  the  suit.  It  is  not  enough  that  they 
were  sufficient  wlien  they  were  taken,^  and  it  is 
incumbent  on  the  sheriff  to  furnish  proof  of  the 
execution  of  the  bond.^  An  act  of  10  April,  1873, 
Pam.  Laws,  p.  776,  has  changed  this  as  to  the  city 
and  count}^  of  Philadelphia.  The  sureties  are  to 
justify  before  a  judge  of  the  proper  court,  and  a 
certificate  of  that  fact  will  exonerate  the  sheriff.^ 
It  is  not  necessary  for  the  plaintiff,  as  against  the 
sheriff,  to  prove  the  execution  by  the  sureties,  proof 
of  the  assignment  by  him  is  sufficient.*  The  decla- 
ration in  the  action  on  the  case,  states  the  distress, 
and  the  replevin,  and  the  proceedings  in  the  re- 
plevin suit,  terminating  with  the  judgment  of 
retorno  habendo.  Where  the  replevin  was  of  a 
distress  for  rent,  it  is  said  that  in  the  action 
against  the  sheriff  for  taking  insufficient  sureties 
it  is  not  necessary  to  aver  a  judgment  of  retorno 
habendo:^  but  that  such  averment  is  necessary 
where  the  replevin  was  of  cattle  distrained  damage 

^  Oxle}'  V.  Cowperthwaite,  1  Dall.  349.  Pearee  v.  Humphrej's, 
14  S.  &  R.  23.     Myers  v.  Clark,  3  W.  &  S.  535. 

"  Baxter  v.  Graham,  5  Watts  418. 

^  Appendix  III. 

*  Barnes  v.  Lucas,  Ryan  &  Moody  264. 

^  Perreau  v.  Bevan,  5  Barn.  &  Cress.  284.  Gibbs  v.  Bartlett, 
2  W.  &  S.  29. 


FOR    TAKIN^G   INSUFFICIENT   PLEDGES.         301 

feasant/  The  declarairaon  then  states  the  duty 
of  the  sheriff  to  take  a  replevin  bond,  but  that  he 
neglected  to  take  such  bond,  and  that  the  plaintiff 
hath  not  obtained  a  return  of  the  goods  or  their 
value,  or  payment  of  the  arrears  of  rent ;  and  in 
the  case  of  taking  insufficient  pledges,  it  is  stated, 
that  the  sheriff  did  take  a  bond  from  certain  persons 
as  sureties,  and  that  they  Avere  not  good,  sufficient, 
or  responsible  sureties.  The  general  allegation  of 
insufficiency  is  enough  in  Pennsylvania ;  in  Eng- 
land, the  modern  precedents  allege  insufficiency  at 
the  time  of  taking — special  damage  is  generally 
added.^  If  there  is  any  difficulty  in  proving  that 
the  sheriff  did  not  take  a  replevin  bond,  add  a  count 
for  his  not  having  assigned  the  bond  upon  request, 
if  that  is  the  fact.  In  New  York  it  has  been  held 
that  under  the  revised  statutes  it  is  necessary  to 
aver  that  a  writ  of  retorno  habendo  has  been  issued, 
and  a  return  of  elongata  made  thereon.^  The 
general  issue  is  not  guilty,  which  puts  in  issue  the 
whole  of  the  allegations  on  the  record  which  must 
be  proved  as  alleged.  The  record  of  the  replevin 
suit  is  evidence  of  the  result,  and  if  the  sureties 

*  Hucker  v.  Gordon,  I  Cromp.  &  Mees.  58. 
^  See  Appendix  for  form.  Pearce  v.  Humphreys,  14  S.  &  R.  23. 
^  Gibbs  V.  Bull,  18  Johns.  435.     Knapp  v.  Colburn,  4  Wend. 
616. 


302      OF    PROCEEDINGS    AGAINST    THE    SHERIFF 

liave  been  sued  ineffectually,  the  record  in  that  suit 
is  generally  given  in  evidence;  a  return  of  nulla 
bona  to  a  fieri  facias  upon  a  judgment  against  a 
surety  in  replevin  is,  however,  only  prima  facie 
evidence  of  his  insufficiency.'  The  sureties  them- 
selves are  witness  as  to  their  sufficiency.^  Evidence 
of  general  reputation  as  to  their  want  of  credit  in 
the  neighborhood  of  their  respective  residences,^ 
will  be  received  in  proof  of  their  insufficiency,  as 
well  as  particular  acts  of  default.*  If  the  plaintiff' 
have  taken  an  assignment  of  the  bond,  it  must  be 
produced  f  but  it  is  not  necessary  to  prove  it, 
proof  of  the  assignment  from  the  sheriff  being 
sufficient  as  against  him.'' 

If  the  plaintiff  has  not  taken  an  assignment  of 
the  bond,  he  must  give  the  defendant  notice  to 
produce  it  at  the  trial ;  if  he  produce  it,  it  may  be 
put  in  evidence  without  proof."     If  he  do  not,  then 

1  Myers  v.  Clark,  3  W.  &  S.  535. 

2  Archbold  on  Land.  &  Ten.  250.  Myers  v.  Clark,  3  W.  & 
S.  535. 

'  Scott  V.  Waithman,  3  Stark.  168.  See  Saunders  u.  Darling 
Bui.  N.  P.  60. 

*  Gwyllim  V.  Scholey,  6  Esp.  100. 

s  Jeffrey  v.  Bastard,  4  Ad.  &  El.  823. 

*  Barnes  v.  Lucas,  Ry.  &  M.  264. 
'  Scott  u.  Waithman,  3  Stark.  168. 


FOR    TAKING    INSUmCIEXT    PLEDGES.        303 

secondary  evidence  must  be  given  of  its  contents.^ 
The  sheriff  of  Philadelphia  is  relieved  by  the  act 
of  April  10,  1873,  Pam.  Laws,  §  1,  p.  776,  from  all 
responsibility  in  the  matter,  the  duty  of  justifying 
the  security  being  cast  upon  the  court. 

^  Archbold  PL  &  Ev.  386,  387.    Arch,  on  Land.  &  Ten.  250. 


CHAPTER    XYIII. 

OF  THE  CLAIM  PROPERTY  BOND. 

The  claim  property  bond  is  unknown  in  Eng- 
lish practice,  and  in  this  country  is  confined  to 
Pennsylvania  and  Delaware.  In  England,  a  claim 
of  property  on  the  part  of  the  defendant,  as  we 
have  seen,  puts  a  stop  to  the  proceedings,  until  a 
writ  de  proprietate  probanda  is  issued.^  In  'New 
York  the  code  allows  the  defendant  on  claim  of 
property  to  retain  it  on  giving  to  the  sheriff  an 
undertaking  in  a  prescribed  form  to  return  the 
goods  if  a  return  is  adjudged,  and  for  the  payment 
to  him  of  such  sum  as  may  for  any  cause  be 
recovered  against  the  defendant.  The  sheriff  can 
proceed  no  further,  until  this  claim  is  disposed  of, 
which  can  only  be  accomplished  by  the  plaintiff 
suing  out  a  writ  de  proprietate  probanda.^  That 
writ  is  not  in  use  in  Pennsylvania.  The  practice, 
under  the  act  of  1705,  has  created  what  may  be 
called   the  common   law  on    this   subject  in  that 

^  See  ante,  p.  63. 
•     ^  Lisher  v.  Pierson,  2  Wend.  345.     Brewster  v.  Sillimun,  38 
N.  Y.  423. 


OF  THE  CLAIM  PROPEETY  BOND.      305 

State.  "Where  the  writ  of  replevin  issues,  the 
defendant  may  put  in  a  claim  of  pi'operty,  and  on 
giving  bond  to  the  sheriff  in  double  the  value  of 
the  goods  to  answer  for  their  value  if  he  shall  not 
succeed  in  the  suit,  he  is  entitled  to  retain  the 
goods.  The  sheriff  will  return  this  fact  to  the  writ 
of  replevin. 

It  is  the  duty  of  the  sheriff,  before  he  removes 
the  goods,  to  allow  the  defendant  reasonable  time 
to  obtain  security.  If  he  does  not,  he  cannot,  in 
an  action  of  trespass,  justify  under  the  writ  in 
replevin.^  The  obligation  entered  into  is  called  a 
claim  property  bond,  and  is  in  form  a  bond  to  the 
sheriff  in  double  the  value  of  the  goods,  conditioned 
that  the  defendant  shall  establish  his  claim  of  pro- 
perty on  the  trial,  and  abide  by  the  judgment  of  the 
court  in  all  things  relating  to  the  premises,  and  to 
indemnify  the  sheriff.^  There  is  no  statute  pre- 
scribing the  form  of  this  bond ;  it  will  not,  there- 
fore, be  void,  if  it  contain  some  conditions  contrary 
to  law,  and  some  that  are  good  and  lawful ;  but  the 
conditions  which  are  against  law  will  be  void  ab 
initio,  while  the  others  will   stand  good.      Thus, 

'  Hocker  v.  Striker,  1  Dall.  225.     Pearce  v.  Humphrey's,  14 
S.  &  R.  23,  25. 

^  See  form  in  Appendix. 


306  OF    THE    CLAIM   PROPP^RTT   BOXD. 

where  a  claim  property  bond  contained  a  condition 
to  make  a  return  of  the  goods,  if  a  return  should  be 
awarded,  it  was  held  that,  although  this  condition 
was  erroneously  in  the  bond,  as  it  looked  to  a 
judgment  which  could  never  be  entered  for  the 
jDlaintifF  in  replevin,  to  wit,  the  judgment  of  re- 
torno  habendo,  yet  it  was  simply  void  as  being 
harmless  and  without  eflect  ;^  and  that  the  plaintiff 
might  recover  on  the  bond  for  a  breach  of  the  con- 
ditions which  were  good :  the  gist  of  the  condition 
lying  in  a  stipulation  to  abide  by  the  judgment 
of  the  court  in  the  premises,  words  peculiarly  well 
suited  to  that  form  of  agreement  by  which  the  surety 
covenants  to  surrender  his  ovna  claim  to  a  separate 
hearing,  and  to  stand  or  fall  with  the  party  for  whose 
benefit  he  is  contracting.^  A  warrant  to  confess 
judgment  is  sometimes  inserted  in  the  bond  as  used 
in  Philadelphia,  and  is  binding  on  the  obligors,^  and 
then  in  cases  in  which  the  prothonotary  would  not 
be  competent  to  assess  the  damages,  a  scire  facias  or 
an  issue  might  be  necessary.  Giving  the  bond  has 
the  effect  of  vesting  the  property  in  the  defendant, 
and  he  cannot  tender  the  property  afterwards  in 

'  Chaffee  v.  Sangston,  10  Watts  265.  Moore  v.  Shenk,  3 
BaiT  13. 

'  Hicks  V.  McBride,  3  Philadelphia  311. 

'  Neville  v.  Williams,  1  Watts  421.  Shaw  v.  Tobias,  3  Comst. 
189.  Short  V.  Hubbard,  2  Bing.  348.  Gingell  v.  Turnbull,  3 
Bing.  N.  C.  881. 


or    THE   CLAIM   PROPERTY    BOXD.  307 

satisfaction  pro  tanto  of  the  damages  claimed/  nor 
can  the  plaintiff  sustain  an  action  of  trover  therefor.^ 
A  landlord  who  has  distrained  for  rent  has  no  such 
interest  in  the  goods  as  will  justify  him  in  claiming 
property.  If  he  does  so,  and  afterwards  avow  for 
rent,  the  avowry  may  be  demurred  to.^ 

The  bond  may  be  assigned  to  the  plaintiff  in  the 
replevin,  but  the  action  upon  it  must  be  brought 
in  the  name  of  the  sheriff  to  his  use.  The  omission 
to  set  out  in  the  declaration  the  proceedings  and 
judgment  in  the  replevin,  though  good  cause  for 
demurrer,  is  cured  by  verdict.* 

The  sureties  in  the  claim  pi-operty  bond  are 
liable  to  the  full  amount  of  the  penalty  of  their 
bond,  and  they  cannot  contest  the  judgment  against 
their  principal. ■'  In  Miller  v.  Foutz,''  the  court 
repudiate  the  idea  that  the  plaintiff  should  recover 

1  Taylor  v.  The  Royal  Saxon,  1  Wall,  Jr.  327.  Fisher  v. 
Whoollery,  1  Casey  198.     Moore  v.  Shenk,  3  Barr  13. 

'  Rockey  v.  Buckhalter,  18  P.  F.  Smiih  221. 

2  Baird  v.  Porter,  It  P.  F.  Smith  105. 

*  Chaffee  v.  Sangston,  10  Watts  265.  Eldred  v.  Bennett,  9 
Casey  183. 

5  Hicks  V.  M'Bride,  5  Phila.  377.  Daniels  v.  Fitch,  8  Barr 
495. 

«  Miller  v.  Foutz,  2  Yeates  418. 

21 


308  OF    THE    CLAIM   PROPERTY    BO:S'D. 

the  value  of  the  goods  only,  and  they  ask,  "  Sup- 
pose a  family  picture,  or  piece  of  plate,  or  (as  this 
case  turned  out  in  the  evidence  on  the  trial)  the 
produce  of  a  farm  for  one  whole  year,  unlawfully 
taken  and  detained  by  a  wrong-doer,  shall  the 
mere  vahie  of  the  property  be  the  sole  measure  of 
damages?"  This  reasoning  would  apply  equally 
well  to  the  sureties  in  the  replevin  bond.  There 
may  be  cases,  undoubtedly,  in  which  the  market  or 
money  value  of  an  article  could  not  be  considered 
as  an  equivalent  for  its  loss  to  the  owner,  and  this 
whether  he  be  depiived  of  it  by  writ  of  replevin,  or 
kept  out  of  it  by  the  claim  property  bond.  In  the 
former  case  we  have  seen  that  interest  upon  the 
value  of  the  article,  when  taken,  from  the  time  of 
taking,  is  the  regular  measure  of  damages,  where 
there  has  been  no  wanton,  vexatious,  oppressive, 
or  culpable  conduct,  and  that  the  defendant  is  not 
entitled  to  any  special  damages  he  has  sustained 
by  the  interruption  of  his  business,  caused  by  th( 
replevin.^  It  is  difficult  to  discover  any  good 
reason  for  a  difference,  and  perhaps  Miller  v.  Foutz 
would  now  be  construed  as  propounding  the  same 
doctrine.^    Except  in  those  cases  in  which  the  writ 

^  M'Cabe  v.  Moorehead,  1  W.  &  S.  513.     Gibbs  v.  Bartlett, 
2  W.  &  S.  35. 
^  M'Donald  v.  Scaife,  1  Jones  385. 


OF    THE   CLAIM   PROPERTY    BOND.  309 

might  be   regarded   as   a  substitute   for  a  bill  in 
equity.^ 

In  ISTew  York,  under  the  revised  statutes,  a  pro- 
ceeding somewhat  analogous  to  the  writ  de  pro- 
prietate  probanda  prevailed.  There,  if  a  claim  of 
property  were  made  by  the  defendant,  or  any  other 
person  in  possession  of  the  goods,  and  the  fees  of 
a  jury  for  trying  such  claim  were  paid  to  the 
sheriff,  he  was  required  to  take  the  goods  into  his 
possessiou,  and  detain  them  in  his  custody,  and, 
forthwith,  to  summon  a  jury  to  appear  before  him, 
at  such  time  and  place  as  he  might  specify,  which 
time  was  required  to  be  within  two  days  thereafter, 
to  try  the  validity  of  such  claim. 

The  new  Code  of  Procedure  has  superseded  this 
system,  and  introduced  a  proceeding  very  similar 
to  the  claim  property  bond  in  Pennsylvania.  The 
most  material  difference  being,  that  a  re-delivery 
to  the  plaintiff  is  stipulated  for  by  the  claimant, 
if  such  delivery  shall  be  adjudged  by  the  court. 
The  code  does  not  provide  for  any  change  in  the 
judgment  for  the  plaintiff,  which,  as  we  have  seen, 
was  at  common  law  for  the  value  of  the  property, 
and  not  a  judgment  of  retorno  habendo.  But  under 
the  revised  statutes,  the  plaintiff  was  allowed,  in 

^  See  cases  cited  note  3,  p.  241  ante. 


310  OF    THE    CLAIM   PROPERTY   BOND. 

addition  to  the  judgment  for  the  vahie  of  the 
chattels,  a  judgment  that  they  should  be  delivered 
to  him  without  delay ,^  and  as  the  new  code  only 
touches  the  process,  it  is  to  be  presumed  that  he 
is  still  entitled  to  this  judgment.  The  statutes  of 
Arkansas  have  followed  the  revised  statutes  of 
ISTew  York.  The  statute  law  of  the  other  States 
attaches  no  importance  to  the  claim  of  property 
by  the  defendant.  Such  claim  does  not,  in  any 
manner,  interfere  with  the  ojoeration  of  the  writ  of 
replevin,  and  the  writ  de  proprietate  probanda  is 
not  allowed.  The  affidavit  of  property  and  right 
of  possession,  exacted  from  the  plaintiff  before  he 
is  entitled  to  the  writ,  and  his  bond  to  prosecute 
with  effect,  are  looked  upon  as  sufficient  protections 
to  the  defendant. 

The  Pennsylvania  practice  has  some  features 
which  recommend  it  in  preference  to  any  other. 
And  this  seems  to  have  been  felt  by  the  authors 
of  the  new  code  in  ^ew  York,  who  have  adopted 
it,  with  an  alteration,  derived  from  their  revised 
statutes,  giving  the  plaintiff  the  benefit  of  a 
judgment  for  a  return  if  he  wishes  it,  which  is 
in  theory,  at  any  rate,  an  improvement.  The 
Pennsylvania  practice  is  but  a  recognition  of  the 

^  Rev.  Stat.  New  York,  Title  Replevin,  Sect.  49. 


or   THE   CLAIM   PROPERTY   BOND.  311 

familiar  maxim,  "  melior  est  conditio  possidentis." 
The  23laintiff  before  trial  is  but  a  claimant  of  the 
property.  If  the  defendant  assumes  the  same 
attitude  and  gives  security  to  establish  his  claim, 
it  is  but  in  accordance  with  general  principles  that 
he  should  retain  the  possession  during  the  pen- 
dency of  the  action.  In  England,  where  replevin 
was  used  chiefly  to  test  the  right  to  distrain,  and 
was  generally  held  not  to  apply  to  other  cases,  the 
property  was  regarded  as  prima  facie  belonging  to 
the  plaintiff";  and  that  he  might  not  be  debarred 
from  the  possession  of  his  property  pending  the 
action,  by  a  vexatious  claim  of  property  on  the 
part  of  the  defendant,  the  writ  de  proprietate  pro- 
banda was  devised  to  try  this  preliminary  question 
at  once,  that,  if  the  property  was  the  plaintiff's, 
he  might  have  possession  of  it  pending  the  suit. 
In  this  country,  where  the  action  is  used  to  try 
the  right  of  property  and  possession  as  well  as  to 
test  the  right  to  distrain,  the  property  is  not  prima 
facie  in  the  plaintiff*,. but  in  the  defendant,  as  being 
the  party  in  possession,  hence  the  propriety  of  not 
disturbing  his  possession,  where  he  claims  pro- 
perty, and  is  willing  to  give  security  to  abide  the 
judgment  of  the  court.  It  might  be  an  improve- 
ment in  the  Pennsylvania  practice  to  adopt  the 
Delaware  construction  of  the  law,  and  allow  the 
defendant  in  all  cases  to  take  judgment  for  the 


312  or    THE    CLAIM   PEOPERTY   BOXD. 

value  of  the  goods  as  well  as  a  retorno  habendo; 
and  to  extend  to  the  plaintiff,  where  the  goods 
have  not  been  delivered  to  him  in  the  first  instance, 
the  benefits  of  a  judgment  of  retorno  habendo,  if 
he  desires  it.  The  revised  statutes  of  'New  York 
provided,  in  a  measure,  for  both  these  changes ;  we 
have  seen  that  they  gave  the  plaintiff*  the  benefit 
of  a  retorno  habendo,  or  order  for  delivery,  which 
was  equivalent  thereto.  They  also  authorized  the 
defendant  when  he  was  entitled  to  a  judgment  of 
retorno  habendo,  except  in  cases  where  the  property 
replevied  had  been  distrained,  to  take,  instead 
thereof,  a  judgment  for  the  value  of  the  property, 
to  be  assessed  by  the  jury,  or  by  writ  of  inquiry, 
as  the  case  might  be.^ 

^  Rev.  Stat.  New  York,  tit.  Replevin,  Sect.  55. 


APPENDIX. 


APPENDIX  I. 
jfovmu  of  Jjroccss, 

Prcecipe. 


A.  B.  1 

In  Court  of  Com.  Pleas, 

V. 

> 

Sept.  T.  1877. 

CD. 

Yalue  $3000. 

Issue  writ  of  replevin 

for  twenty  boxes  of  mer- 

chaiidise,  marked  as  follows :  returnable  1st  Monday 

of  October,  1848. 

W.  E.  M. 

W.  B. 

S.        &c. 

# 

E.  F. 

To  Prothonotary, 

Atty.  for  Prff. 

C.  C.  P. 

Sept.  10, 1877. 

Writ  of  Heplevm. 
City  and  County  of  Philadelphia,  ss. 

^i^j'       The  Commonwealth  of  Pennsylvania,  to 
im^Ml  the  sheriff  of  Philadelphia  county,  greet- 

^^Tffv^'  ing :  If  A.  B.  make  you  secure  of  prose- 


316  APPENDIX   I. 


cuting  his  claim  with  effect  against  C.  D.,  then  we 
command  you  that  the  said  A.  B.,  twenty  boxes  of 
merchandise,  marked,  &c.,  to  be  replevied  and 
delivered,  yon  cause,  and  that  you  put  by  sureties 
and  safe  pledges  the  said  C.  D.,  so  that  he  be  and 
appear  before  our  judges  at  Philadelphia,  at  our 
Court  of  Common  Pleas  for  the  County  of  Phila- 
delphia,   there   to   be   held    the   first    Monday   of 

next,  to  answer  the  said  A.  B.  of  a  plea,  where-  J 
fore  he  took  the  goods  and  chattels  aforesaid,  the 
property  of  the  said  A.  B.,  and  the  same  unjustly 
detains  against  sureties  and  safe  pledges,  &c.  And 
have  you  then  there  this  writ.  ■WIT:NESS  the 
Honorable  President  of  our 

said  Court  at  Philadelphia,  the         day  of 
in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  seventy- 

Prothonotary. 
N.  B.  The  value  of  the  goods  is  indorsed  on  the 
writ. 


JVi'it  of  Homine  Hejylegiando. 

Pennsylvania,  ss, 

Abiiif/,       The  Commonwealth  of  Pennsylvania  to 
:Mw^r.  .  .  . 

S^*|Jithe  sheriff  of  Philadelphia  county,  greet- 

"^jfjv-^  ing:    We   command  you  that  justly  and 


APPENDIX   I.  317 

without  delay  you  cause  to  be  replevied  "William 
Wright,  otherwise  called  Ben.  Hall,  whom  Israel 
Deacon,  late  of  your  county,  took  and  taken  doth 
hold  as  it  is  said,  unless  the  aforesaid  William 
Wright,  otherwise  called  Ben.  Hall,  was  taken  by 
our  special  precept,  or  of  our  Chief  Justice,  or  of 
the  death  of  any  man,  or  of  any  other  right  whereof, 
according  to  the  laws  and  usages  of  this  Common- 
wealth, he  is  not  repleviable  that  no  more  clamor 
thereof  we  may  have  for  defect  of  justice,  and  how 
you  shall  execute  this  our  writ  you  make  appear  to 
our  justices  of  our  Supreme  Court  at  our  Supreme 
Court  to  be  holden  at  Philadelphia,  in  and  for 
our  Eastern  District,  on  the  second  Monday  of 
December  next,  and  have  you  then  there  this  writ. 
Witness  the  Hon.  William  Tilghman,  Esquire, 
Doctor  of  Laws,  Chief  Justice  of  our  said  Supreme 
Court,  at  Philadelphia,  the  twenty-seventh  day  of 
July,  in  the  year  of  our  Lord  1818. 

Return.  John  Conrad,  Proth'y. 

Replevied,  Sept.  25th,  1818,  Summoned. 


Replevin  Bond  as  used  in  New  Yorlc, 

Know  all  men  by  these  presents,  that  we         are 
held  and  firmly  bound  unto  sheriff  of  the 


318  APPENDIX   I. 

in  the  sum  of  dollars,  lawful  money  of  the 

United  States,  to  be  paid  to  the  said  sheriff,  or  to 
his  assigns :  For  which  payment  well  and  truly 
to  be  made,  we  bind  ourselves,  our  and  each  of 
our  heirs,  executors,  and  administrators,  jointly 
and  severally,  firmly  by  these  presents.  Sealed 
with  our  seals.     Dated         day  of  one  thou- 

sand eight  hundred  and 

The  condition  of  this  obligation  is  such,  That 
if  the  above  bounden  shall  prosecute  the  suit 

to  effect,  and  without  delay,  which  ha       com- 

menced in  the  against       ,    the  defendant,  for 

unjustly  detaining  (name  the  goods)  and 
that  if  the  defendant         recover  judgment  against 
in  such  action,  will  return  the  same  pro- 

perty, if  return  thereof  be  adjudged,  and  will  pay 
to  the  defenda7Lt  all  such  sums  of  money  as  may 
be  recovered  against  by  such  defendant          in 

the  said  action,  for  any  cause  whatever,  then  the  I 
above  obligation  to  be  void. 

Sealed  and  delivered  (71  the  presence  of 
State  of  ISTew  York,  City  and  County  of  ^ew 
York,  ss.  of  the  said  city,  being  duly  sworn, 

says,  that  he  has  examined  and  appraised  the 
property  specified  in  the  above  bond ;  that  he  has 
no  interest  therein,  nor  in  the  suit  commenced 
therefor,  and  believes  the  same  to  be  of  the  value 
of 


appe:n"dix  I.  319 

Sworn  hefore  me  and  examined,  this  9th  day  of 
March,  1848. 

Sheriff, 


Replevin  Bond  as  used  in  Philadelphia  in  1849. 

Know  all  men  by  these  presents,  that  we  A.  B., 
C.  D.,  and  E.  F.,  are  held  and  firmly  bound  unto 
Henry  Lelar,  Esq.,  Sheriif  of  the  City  and  County 
of  Philadelphia,  in  the  just  and  full  sum  of 
lawful  money  of  Pennsylvania,  to  be  paid  to  the 
said  Henry  Lelar,  Esq.,  his  certain  attorney,  exe- 
cutors, administrators,  or  assigns :  to  which  pay- 
ment well  and  truly  to  be  made  and  done,  we  do 
bind  ourselves,  and  each  of  us,  our  heirs,  execu- 
tors and  administrators,  and  every  of  them,  jointly 
and  severally,  firmly  by  these  presents.  Sealed 
with  our  seals,  dated  this  day  of  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and 
forty- 

The  condition  of  this  obligation  is  such,  That 
whereas  the  above  bounden  A.  B.,  having  obtained 
a  certain  writ  of  replevin  issued  out  of  the 
tested  at  Philadelphia,  the  day  of  against 
a  certain  J.  K.,  of  the  county  aforesaid,  com- 
manding the  said  sheriff,  that  he  should  replevy, 


320  APPEN^DIX   I. 

and  cause  to  be  delivered  to  the  said  A.  B.  {enu- 
merate the  articles). 

N^ow  if  the  above  bounden  A.  B.  shall  and  will 
prosecute  his  suit  against  the  said  J.  K.  with  effect, 
and  shall  and  will  make  return  of  the  said  goods,, 
if  return  of  the  same  shall  be  adjudged,  and  shall 
and  will,  also,  from  time  to  time,  and  at  all  times 
hereafter,  well  and  sufficiently  keep  and  save 
harmless  and  indemnified  the  above  named  sheriff 
and  his  officers,  and  his  or  their  heirs,  executors, 
and  administrators,  and  every  of  them,  of  and 
from  all  manner  of  suits,  action  and  actions,  costs 
or  charges  whatsoever,  that  shall  and  may  accrue 
to  him  or  them,  by  reason  of  the  replevy  and  de- 
livery aforesaid,  that  then  the  above  obligation  to 
be  void  and  of  none  effect,  otherwise  to  be  and 
remain  in  full  force  and  virtue ;  and  we  hereby 
authorize  the  prothonotary  of  the  proper  court  to 
enter  judgment  hereon,  upon  the  recovery  of  judg- 
ment against  the  said  sheriff,  upon  any  of  the  fore- 
going accounts. 

Sealed  and  delivered  | 

in  the  presence  of  us,    J 

A.  B.     (seal.) 

C.  D.     (seal.) 

E.  F.     (seal.) 


APPEN^DIX    I.  321 

Iieplevi7i  Bond  as  used  in  PMladelpliia  in  1869. 

Know  all  men  by  these  presents,  that  we 
are  held  and  firmly  bound  unto  Peter  Lyle,  Esq., 
Sheriff  of  the  City  and  County  of  Philadelphia,  in 
the  just  and  full  sum  of  dollars,  lawful  money 
of  Pennsylvania,  to  be  paid  to  the  said  Peter  Lyle, 
Esq.,  his  certain  attorney,  executors,  administra- 
tors, or  assigns ;  to  which  payment  well  and  truly 
to  be  made  and  done,  we  do  bind  ourselves,  and 
each  of  us,  our  heirs,  executors,  and  administra- 
tors, and  every  of  them,  jointly  and  severally, 
firmly  by  these  presents.  Sealed  with  our  seals, 
dated  this         day  of  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and 

The  condition  of  this  obligation  is  such,  That 
whereas,  the  above  bounden  having  obtained  a 

certain  Writ  of  Replevin,  issued  out  of  the  for 

the  City  and  County  of  Philadelphia,  as  of 
Term,  18         ^o.         tested   at   Philadelphia,   the 

day  of  18         against  of  the  county 

aforesaid,  commanding  the  said  sheriff,  that  he 
should  replevy,  and  cause  to  be  delivered  to  the 
said  plaintiff  {enumerate  the  articles).  IS^ow  if  the 
above  bounden  plaintiff        shall  and  will  prosecute 

suit  against  the  said  defendant  with  effect 

and  shall  and  will  make  return  of  the  said  goods, 


322  APPENDIX    I. 

if  return  of  the  same  shall  be  adjudged,  and  if  the 
said  obligors  shall  and  will,  also,  from  time  to  time, 
and  at  all  times  hereafter,  well  and  sufficiently  keep 
and  save  harmless  and  indemnified  the  above-named 
sheriff  and  his  officers,  and  his  or  their  heirs,  exe- 
cutors and  administrators,  and  every  of  them,  of 
and  from  all  manner  of  suits,  action  and  actions, 
costs  or  charges  whatsoever,  that  shall  and  may 
accrue  to  him  or  them,  by  reason  of  the  replevy 
and  delivery  aforesaid,  that  then  the  above  obliga- 
tion to  be  void  and  of  none  eftect,  otherwise  to  be 
and  remain  in  full  force  and  virtue;  and  we  hereby 
authorize  the  prothonotary  of  the  proper  court,  to 
enter  judgment  hereon  for  the  above-mentioned 
sum  of  dollars. 
Sealed  and  delivered  | 

in  the  presence  of  us,    j 

(seal.) 

(seal.) 

(seal.) 

(seal.) 


Heplevin  Bond  as  used  in  Philadelphia  in  1878. 

Know  all  men  by  these  presents,  that  we,  A.  B. 
and  C.  D.  and  E.  F.,  sureties  approved  by  the  court, 
are  held  and  firmly  bound  unto  William  H.  Wright, 
Esquire,  Sheriff  of  the  City  and  Count}^  of  Phila- 
delphia, in  the  just  and  full  sum  of  dollars, 


APPENDIX   I.  323 

lawful  money  of  Pennsylvania,  to  be  paid  to  the 
said  William  H.  Wright,  Esquire,  his  certain 
attorney,  executors,  administrators,  or  assigns ;  to 
which  payment  well  and  truly  to  be  made  and 
done,  we  do  bind  ourselves,  and  each  of  us,  our 
heirs,  executors,  and  administrators,  and  every  of 
them,  jointly  and  severally,  firmly  by  these  presents. 
Sealed  with  our  seals,  dated  this         day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred 
and  seventy- 

The  condition  of  this  obligation  is  such.  That 
whereas  the  above  bounden  having  obtained  a 

certain  Writ  of  Replevin,  issued  out  of  the  Court 
of  Common  Pleas,  No.  for  the  City  and  County 
of  Philadelphia,  as  of  Term,  187    ,  No. 

tested  at  Philadelphia,  the  day  of  against  a 
certain  of  the  County  aforesaid  commanding 
the  said  Sheriff,  that  he  should  replevy,  and  cause 
to  be  delivered  to  the  said  plaintiff  (name  tlie  arti- 
cles). 

JN'ow  if  the  above  bounden  plaintiff        shall  and. 
will  prosecute  suit  against  the  said  defendant 

with  effect,  and  shall  and  Avill  ma'  e  return 
of  the  said  goods,  if  return  of  the  same  shall  be 
adjudged,  and  shall  and  will,  also,  from  time  to 
time,  and  at  all  times  hereafter,  well  and  sufficiently 
keep  and  save  harmless  and  indemnified  the  above- 
named  Sheriff  and  his  officers,  and  his  or  their 
22 


324  APPEiETDIX    I. 

heirs,  executors,  and  administrators,  and  every  of 
them,  of  and  from  all  manner  of  suits,  action  and 
actions,  costs  and  charges  whatsoever,  that  shall 
and  may  accrue  to  him  or  them  hy  reason  of  the 
replevy  and  delivery  aforesaid,  that  then  the  above 
obligation  to  be  void  and  of  none  effect,  otherwise 
to  be  and  remain  in  full  force  and  virtue. 

Sealed  and  delivered 

in  the  presence  of  us, 

(seal.) 

(seal.) 

(seal.) 

(seal.) 


Claim  Property  Bond  as  used  in  the  county  of 
Philadel2)hia  in  1849. 

Know  all  men  by  these  presents,  that  we,  A.  B., 
C.  D.,  and  E.  F.,  are  held  and  firmly  bound  unto 
Henry  Lelar,  Esq.,  Sheriff  of  the  city  and  county 
of  Philadelphia,  in  the  just  and  full  sum  of 
lawful  money  of  Pennsylvania,  to  be  paid  to  the 
said  Henry  Lelar,  Esq.,  his  certain  attorney,  execu- 
tors, administrators  or  assigns :  to  which  payment 
well  and  truly  to  be  made  and  done,  we  do  bind 
ourselves,  and  each  of  us,  our  heirs,  executors  and 
administrators,   and  every   of   them,  jointly   and 


appe:n^dix  I.  325 

severally  firmly  by  these  presents.  Sealed  with  our 
seals,  dated  this         day  of  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  forty- 

The  condition  of  this  obligation  is  such,  That 
whereas,  J.  K.  having  obtained  a  certain  writ  of 
replevin,  issued  out  of  the  tested  at  Philadel- 

phia, the  day  of  against  the  above  bounden 
A.  B.  of  the  county  aforesaid,  commanding  the 
said  sheriff,  that  he  should  replevy,  and  cause  to 
be  delivered  to  the  said  J.  K.  (certain  articles, 
enumerating  them). 

And  whereas  the  said  A.  B.  hath  claimed  pro- 
perty in  the  said  (goods  and  chattels)  wherefore 
delivery  of  the  said  (goods  and  chattels)  cannot  be 
made.  ]!*^ow  if  the  above  bounden  A.  B.  shall  and 
do  well  and  truly  deliver  up  the  said  (goods  and 
chattels)  to  the  said  J.  K.,  if  the  property  thereof 
shall  be  adjudged  in  the  said  J.  K.,  and  shall  do 
and  well  and  truly  abide  by  the  judgment  of  the 
said  court  in  all  things  relating  to  the  premises, 
and  shall  also  save  and  keep  harmless,  and  indem- 
nify the  said  sheriff  in  the  premises,  then  this  ob- 
ligation to  be  void  and  of  none  effect,  otherwise  to 
be  and  remain  in  full  foi-ce  and  virtue. 

Sealed  and  delivered  ) 
in  the  presence  of  us.     f        '        A.  B.     (seal.) 

C.  D.     (seal.) 
E.  F.     (sp:al.) 


326  APPEIiTDIX    I. 


Form  of  Claim  Property  Bond  used  in  Philadelphia 

in  18(39. 

Know  all  men  by  these  presents,  that  we 
are  held  and  firmly  bound  unto  Peter  Lyle,  Esq., 
Sheriff  of  the   City  and   County  of  Philadelphia, 
in  the  just  and  full  sum  of  dollars,  lawful 

money  of  Pennsylvania,  to  be  paid  to  the  said 
Peter  Lyle,  Esq.,  his  certain  attorney,  executors, 
administrators,  or  assigns ;  to  Avhich  payment  well 
and  truly  to  be  made  and  done,  we  do  bind  our- 
selves, and  each  of  us,  our  heirs,  executors,  and 
administrators,  and  every  of  them,  jointly  and 
severally,  firmly  by  these  presents.  Sealed  with 
our  seals,  dated  this         day  of  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

The  condition  of  this  obligation  is  such.  That 
whereas,  having  obtained  a  certtun  Writ  of 

Replevin,  issued  out  of  the  for  the  City  and 

County  of  Philadelphia,  Ko.  Term,  18 

tested  at  Philadelphia,  the         day  of  against 

of  the  county  aforesaid,  commanding  the  said 
sheriff",  that  he  should  replevy,  and  cause  to  be 
delivered  to  the  said  plaintiff"  (enumerate  the  arti- 
cles.) 

And  whereas,   The   said  defendant  ha 

claimed  property  in  the  said  goods  and  chattels, 


APPENDIX    I.  327 

whereof  delivery  of  the  same  cannot  be  made  to 
the  said  plaintiif  .  ^ow  if  the  above  bounden 
defendant  shall  and  do  well  and  truly  deliver 

np  the  said  goods  and  chattels  to  the  said  plaintiff 
if  the  property  thereof  shall  be  adjudged  in 
the  said  plaintiff,  and  shall  and  do  well  and 

truly  abide  by  the  judgment  of  the  said  court  in 
all  things  lelating  to  the  premises,  and  if  the  said 
obligors  shall  also  save  and  keep  harmless,  and 
indemnify  the  said  sheriff  in  the  premises,  then 
this  obligation  to  be  void  and  of  none  effect,  other- 
wise to  be  and  remain  in  full  force  and  virtue, 
and  the  said  obhgors  hereby  authorize  the  pro- 
thonotary  of  the  proper  court  to  enter  judgment 
hereon  for  the  above  mentioned  sum  of         dollars. 


Sealed  and  delivered 
in  the  presence  of  us 


•edl 

s.    3 


(seal.) 
(seal.) 
(seal.) 
(seal.) 


Claim  Property  Bond  as  used  in  Philadeljjhia 
in  1878. 

Know  all  men  by  these  presents,  that  we 
are  held  and  firmly  bound  unto  William  H.  Wright, 


328  APPENDIX   I. 

Esquire,  Sheriff  of  the  City  and  County  of  Phila- 
delphia, in  the  just  and  full  sum  of  dollars,  law- 
ful money  of  Pennsylvania,  to  be  paid  to  the  said 
William  H.  Wright,  Esqmre,  his  certain  attorney, 
executors,  administrators,  or  assigns ;  to  which 
payment  well  and  truly  to  be  made  and  done,  we 
do  bind  ourselves,  and  each  of  us,  our  heirs, 
executors,  and  administrators,  and  every  of  them, 
jointly  and  severally,  firmly  by  these  presents. 
Sealed  with  our  seals,  dated  this         day  of  in 

the  year  of  our  Lord  one  thousand  eight  hundred 
and  seventy- 

The  condition  of  this  obligation  is  such.  That 
whereas,  having  obtained  a  certain  Writ  of 

Peplevin,  issued  out  of  the  Court  of  Common  Pleas, 
'No.     for  the  City  and  County  of  Philadelphia, 
Term,  187     ,  ^o.  tested  at  Philadelphia,  the 

day  of  against  of  the  County  afore- 

said, commanding  the  said  Sheriff,  that  he  should 
replevy,  and  cause  to  be  delivered  to  the  said 
2)laintiff  (^enumerate  the  articles). 

And  whereas,  The  said  defendant  ha 

claimed  property  in  the  said  goods  and  chattels, 
whereof  delivery  of  the  same  cannot  be  made  to 
the  said  plaintiff  .  JSTow  if  the  above  bounden 
defendant  shall  and  do  well  and  truly  deliver  up 
the  said  goods  and  chattels  to  the  said  plaintiff  , 
if  the  property  thereof  shall  be  adj  udged  in  the  said 


APPENDIX   I. 


329 


plaintiff  ,  and  shall  and  do  well  and  truly  abide 
by  the  judgment  of  the  said  Court  in  all  things 
relating  to  the  premises,  and  if  the  said  obligors 
shall  also  save  and  keep  harmless,  and  indemnify 
the  said  Sheriff  in  the  premises,  then  this  obligation 
to  be  void  and  of  none  effect,  otherwise  to  be  and 
remain  in  full  force  and  virtue. 


Sealed  and  delivered  | 

us,    i 


in  the  presence  of 


(seal.) 
(seal.) 
(seal.) 
(seal.) 


Writ  of  Retorno  Habevido. 


Philadelphia,  ss. 

The  Commonwealth  of  Pennsylvania  to  the 
Sheriff  of  the  said  County,  greeting :  Whereas  A. 
B.,  lately  in  our  District  Court  at  Philadelphia,  was 
summoned  to  answer  E.  F.  of  a  plea  wherefore  he 
took  three  horses,  of  the  value  of  three  hundred 
dollars,  lawful  money,  &c.,  of  the  goods  and  chat- 
tels of  him  the  said  E.  F.,  and  the  same  unjustly 
detained  against  sureties  and  pledges,  &c.,  as  he 
alleged,  and  the  said  E.  F.  afterwards  made  default 


330  APPENDIX   I. 

in  our  said  court,  before  our  judges  at  Philadel- 
phia: 'Wh?:efore,  it  is  considered  in  our  same 
court,  before  our  said  judges,  that  he  and  his 
pledges  for  prosecuting  sh:.uld  be  amerced,  and 
that  the  said  A.  B.  might  depart  the  court  without 
day,  and  should  have  return  of  the  horses  aforesaid. 
Therefore  we  command  you,  that,  without  delay, 
you  return  the  said  three  horses  to  the  said  A.  B., 
and  you  shall  not  deliver  the  said  horses  at  the 
complaint  of  the  said  E.  F.,  without  our  writ,  which 
shall  expressly  mention  the  said  judgment.  And 
in  what  manner  you  shall  execute  this  writ,  make 
known  to  our  judges  at  Philadelphia,  at  our  Dis- 
trict Court  there  to  be  held  for  the  said  city  and 
county  of  Philadelphia,  the  first  Monday  of 
next.  And  have  you  then  there  this  writ.  "Wit- 
ness, &c. 


Notice  of  claim  of  Property. 

To  H.  L.,  Sheriff  of  the  City  and  County  of 
Philadelphia.  Sir, — I  hereby  claim  property  in 
the  goods  and  chattels  (or  beasts,  or  if  a  part  only 
be  claimed,  state  the  part  particularly)  sought  to 
be  replevied  by  A.  B.  on  a  writ  of  replevin,  issued 
out  of  the  District  Court  for  the  city  and  county 


I 

APPENDIX    I.  331 

of  Philadelphia,  of  March  Term,  1849,  'No.  against 
C.  D.,  and  to  you  directed.  And  I  offer  M.  N., 
No.  Walnut  Street,  and  O.  P.,  :N"o.  Yine 

Street,  as  sureties  in  the  bond. 

Dated,  &c.  ,  Signed  by  claimant. 


APPENDIX  II. 
Jfovtnu  of  Jjleatrfng* 

Declaration  in  the  detinuit  when  the  sheriff  returns 
summoned,  replevied,  and  delivered. 

In  the  District  Court  for  the  City  and  County 
of  Philadelphia. 

Philadelphia,  ss. 

A.  B.  was  summoned  to  answer  C.  D.  of  a  plea 
wherefore  he  took  the  goods  and  chattels  of  the 
said  C.  D.  and  unjustly  detained  the  same  against 
sureties  and  pledges,  &c.,  and  thereupon  the  plain- 
tiff, by  E.  F.  his  attorney,  complains  for  that  the 
defendant  on  the  day  of  at  in  the  county 
aforesaid,  in  a  certain  dwelling-house,  I^o  Wal- 
nut street  (or  farm,  or  store-house,  as  the  case  may 
be),  took  the  goods  and  chattels,  to  wit  (here  enu- 
merate the  articles  as  in  the  writ),  of  him  the 
plaintiff,  of  great  value,  to  wit,  of  the  value  of  , 
and  unjustly  detained  the  same  against  sureties 
and  pledges,  until,  &c. ;  to  the  damage  of  the 
plaintiff  of    ;  and  thereupon  he  brings  his  suit,  &c. 


APPEXDIX   II.  333 

Declaration  in  the  detiaet  when  the  sheriff  returns 
eloigned,  or  that  a  claim  property  hond  has  heen 
taken. 

In  the  District  Court  for  the  city  and  county 
of  Philadelphia. 

Philadelphia,  ss. 

A.  B.  was  summoned  to  answer  C.  D.  of  a  plea 
wherefore  he  took  the  goods  and  chattels  of  the 
said  C.  D.  and  unjustly  detained  the  same  against 
sureties  and  pledges,  and  thereupon  the  plaintiff, 
by  E.  F.  his  attorney,  complains  for  that  the  de- 
fendant on  the  day  of  at  in  the  county 
aforesaid,  in  a  certain  dwelling-house,  !No.  "VYal- 
imt  Street  (or  form,  or  storehouse,  as  the  case  may 
be),  took  the  goods  and  chattels,  to  wit  (here  enu- 
merate the  articles  as  in  the  writ),  of  him  the 
plaintiff,  of  great  value,  to  wit,  of  the  value  of  , 
and  unjustly  detains  the  same  against  sureties  and 
pledges,  to  the  damage  of  the  plaintiff  of  ; 
and  therefore  he  brinji^s  his  suit. 


334  APPENDIX   II. 

Declaration  in  tlie  detinuit  and  deiinet,  ivJiere  the 
sheriff  returns  rejjlevied  and  delivered,  as  to  some 
of  the  goods,  eloigned  as  to  others. 

In  the  District  Court  for  the  city  and  county 
of  Philadelphia. 

Philadelphia,  ss. 

A.  B.  Avas  summoned  to  answer  C.  D.  of  a  plea 
wherefore  he  took  the  goods  and  chattels  of  the 
said  C.  D.  and  uujustly  detained  the  same  against 
sureties  and  pledges,  and  thereupon  the  plaintiff, 
by  E.  F.  his  attoi'ney,  complains  for  that  the  de- 
fendant on  the  day  of  at  in  the  county 
aforesaid,  in  a  certain  dwelling-house,  ^o. 
Walnut  street  (or  farm,  or  store-house,  as  the  case 
may  be),  took  the  goods  and  chattels,  to  wit 
(stating  the  goods  as  enumerated  in  the  writ),  of 
him  the  plaintiff  of  great  value,  to  wit,  of  the  value 
of  $  ,  and  parcel  thereof,  to  wit,  one  hundred 
barrels  of  flour,  unjustly  detained  against  sureties 
and  pledges,  &c.,  until,  (fcc,  and  the  residue  or 
remainder  thereof  still  doth  detain  against  sureties 
and  pledges.  Wherefore  he,  the  said  C.  D.,  saith 
he  is  injured,  and  hath  damage  to  the  value  of 
%         and  therefore  he  brings  suit,  &c. 


APPEJfDIX    II.  335 

Plea,  non  cejnt. 

In  the  District  Court  for  the  city  and  county  of 
Philadelphia. 

Philadelphia,  ss. 

And  the  said  defendant,  by  E.  F.  his  attorney, 
comes,  &c.,  and  says  that  he  did  not  take  the  said 
goods  and  chattels,  in  the  said  declaration  men- 
tioned, or  any  or  either,  of  them,  or  any  part  thereof, 
in  manner  and  form  as  the  plaintiff  has  above 
thereof  complained  against  him ;  and  of  this  the 
defendant  puts  himself  on  the  country,  etc. 


Plea,  cepit  in  alio  loco. 

And  the  said  defendant,  by  E.  F.  his  attorney, 
comes,  etc.,  and  says  that  he  took  the  said  cattle, 
in  the  said  declaration  mentioned,  in  a  certain  close 
(dwelling-house,  store,  as  the  case  may  be),  called 
,  in  the  county  aforesaid,  without  this,  that  he 
took  the  said  cattle,  or  any  or  either  of  them,  in 
the  said  place  called  the  ,  in  the  county  afore- 

said, as  the  plaintiff  has  in  his  said  declaration  in 
that  behalf  alleged:  and  this  the  defendant  is  ready 
to  verify,  etc.     And  for  having  a  return  of  the  said 


336  APPENDIX    IT. 

cattle,  the  defendant  well  avows  the  taking  of  the 
said  cattle,  in  tlie  said  declaration  mentioned,  in 
the  said  close  called  ,  and  justly,  etc.,  because 

he  says  that  before  the  said  time  when,  etc.,  and  at 
the  time  of  making  the  demise  hereinafter  men- 
tioned, one  C.  D.  was  seized  of,  and  in  the  said 
close  called  ,  in  which,  etc.,  with  the  appurte- 

nances in  his  demesne  as  of  fee:  and  being  so  seized, 
he,  the  said  C.  D.,  before  the  said  time,  etc.,  to  wit, 
on  demised  the  said  close  called  ,  in  which, 
etc.,  with  the  appurtenances  to  the  defendant  to 
have  and  to  hold  the  same  to  the  defendant,  for  the 
term  of  years  thence  next  ensuing,  and  fully 

to  be  complete  and  ended :  by  virtue  of  which  said 
cfemise,  he,  the  defendant,  afterwards  and  before 
the  said  time  when,  etc.,  to  wit,  on  the  day  and 
year  last  aforesaid,  entered  into  the  said  close 
called  the  ,  in  which,  etc.,  with  the  appurte- 

nances, and  became,  until  and  at  the  said  time 
when,  etc.  was  lawfully  possessed  thereof:  and  be- 
cause the  said  cattle  in  the  said  declaration  men- 
tioned at  the  same  time  when,  etc.,  were  wrongfully 
and  injuriously  in  the  said  close  called  ,  and 

treading  down  and  depasturing  the  grass  and  herb- 
age then  and  there  growing,  and  doing  damage 
there  to  him  the  defendant,  he,  the  defendant,  well 
avows  the  taking  of  the  said  cattle  in  the  said  close 
called  ,  and  justly  and  as  for  and  in  the  name 


APPENDIX    II.  337 

of  a  distress,  for  the  said  damage  so  there  done  and 
doinof  as  aforesaid. 


Plea  admitting  defendant  had  the  cattle  in  the  locus 
in  quo,  hut  tooJc  them  dirnage feasant  in  another. 

And  the  said  defendant,  by  E.  F.  his  attorney, 
comes  and  defends  the  wrong  and  injury  when,  etc., 
and  well  avows  the  taking  and  having  the  said 
(mare)  in  the  said  piece  or  parcel  of  land  called 
,  as  in  the  said  declaration  mentioned,  and 
justly,  etc.,  because  he  says  that,  etc.  (Here  state 
a  seizin  in  fee  of  another  close,  and  a  demise  thereof 
to  the  defendant  and  his  entry,  and  the  distress 
damage  feasant,  as  in  the  last  form,  to  the  end,  and 
then  proceed  as  follows.)  And  the  said  defendant 
afterwards,  and  immediately  before  the  said  time 
when,  etc.,  took  and  led  the  said  mare  from  the 
said  close,  piece,  or  parcel  of  ground  so  demised 
to  him  as  aforesaid,  to  the  said  place  in  the  said 
declaration  mentioned,  called  the  ,  in  which, 

etc.,  and  at  the  said  time  when,  etc.,  had  the  same 
there  in  the  way  from  the  said  close,  piece,  or  par- 
cel of  ground,  so  demised  as  aforesaid,  to  a  certain 
pound  at  ,  in  the  county  aforesaid,  there  to  be 

impounded  for  the  damage  so  done  in  the  said  close. 


338  APPENDIX    II. 

piece,  or  parcel  of  ground,  so  demised  as  aforesaid; 
and  this  etc.  (conclude  with  verification). 


Plea,  2^roperty  in  another. 

And  for  a  further  plea  in  this  hehalf,  with  the 
leave  of  the  court  first  had  and  obtained,  the  de- 
fendant says  that  the  property  of  the  said  goods 
and  chattels  in  the  said  declaration  mentioned,  at 
the  said  time  when,  etc.,  was  in  him  the  defendant 
(or  in  one  A.  B.,  as  the  case  may  he),  without  this 
that  the  property  of  the  said  goods  and  chattels,  or 
any  part  thereof,  at  the  said  time  when,  etc.,  was 
in  the  said  plaintiff  as  by  the  said  declaration  is 
above  supposed,  and  this  the  defendant  is  ready  to 
verify;  wherefore  he  prays  judgment,  etc. 


Plea,  statute  of  limitations. 

And  for  a  further  plea  in  this  behalf,  the  de- 
fendant says  that  he  did  not  take  or  detain  the 
said  goods  and  chattels  in  the  said  decla<*ation 
mentioned,  or  any  of  them,  or  any  part  thereof,  in 
manner  and  form  as  the  plaintiff  has  above  thereof 


APPENDIX   II.  339 

complained  against  him,  at  any  time  within  six 
years  before  the  commencement  of  this  suit;  and 
this  he  the  said  defendant  is  ready  to  verify. 


Heplication  to  the  above. 

And  the  phiintiff,  as  to  the  said  plea  of  the 
defendant  by  him  above  pleaded  says,  that  the 
defendant  did  take  and  detain  the  said  goods  and 
chattels,  in  the  said  declaration  mentioned,  in 
manner  and  form  as  he  the  plaintiff  has  above 
thereof  complained  against  him,  within  six  years 
before  the  commencement  of  this  suit,  and  this  he 
the  said  plaintiff  prays  may  be  inquired  of  by  the 
country,  etc. 


Avowry  or  Cognizance  for  rent. 

The  defendant,  by  E.  F.,  his  attorney,  well  avows 
(or  in  a  cognizance  as  bailiff  of  R.  S.,  well  acknow- 
ledges) the  taking  of  the  said  goods  and  chattels 
in  the  said  declaration  mentioned,  in  the  said 
dwelling-house  in  which,  etc.,  and  justly,  etc.,  be- 
cause he  says,  that  the  plaintiff  (or  one  J.  K.)  for 
23 


340  APPENDIX   II. 

a  long  time,  to  wit,  for  the  space  of  years,  next 
before  and  ending  on  and  from  thence  until  and 
at  the  time  when,  etc.,  held  and  enjoyed  the  said 
dwelling-house  in  Avhich,  etc.,  with  the  appurte- 
nances, as  tenant  thereof  to  the  said  defendant  (or 
G.  H.,)  by  virtue  of  a  certain  demise  thereof  to  him 
the  said  plaintiff,^  (or,  the  said  J.  K.)  theretofore 
made  at  and  under  a  certain  yearly  rent  of 
payable  quarterly  on  (state  the  days  of  payment), 
in  every  year,  by  even  and  equal  portions ;  and 
because  the  sum  of  of  the  rent  aforesaid,  for 

the  said  space  of  ending  as  aforesaid  on  the  said 
day  of  in  the  year  aforesaid,  and  from  thence 
until,  and  at  the  same  time  when,  etc.,  was  due  and 
in  arrear  from  the  plaintiff  to  the  defendant  (or  G. 
H.  in  a  cognizance),  he  the  defendant  well  avows 
(or  if  a  cognizance,  "as  bailiflP  of  the  said  G.  H., 
well  acknowledges")  the  taking  of  the  said  goods 
and  chattels,  in  the  said  dwelling-house  in  which, 
etc.,  and  justly,  etc.,  as  for  and  in  the  name  of  a 
distress  for  the  said  rent,  so  due  and  in  arrear  to 
the  defendant  (or  G.  P.  as  aforesaid) ;  which  said 
rent  still  remains  in  arrear  and  unj^aid;  and  this 
the  defendant  is  ready  to  verify;  wherefore  he 
prays  judgment,  and  a  return  of  the   said  goods 

^  If  it  be  doubtful  to  whom  the  original  letting  was,  the  words 
"  to  him  the  said  plaintiff,"  should  be  omitted. 


appe:n^dix  II.  341 

and  chattels,  together  with  his  damages,  according 
to  the  form  of  the  statute  in  such  case  made  and 
provided  to  be  adjudged  to  him,  etc. 


Suggestion  in  nature  of  an  avowry  on  a  jiidgment 
against  the  Plaintiff  'by  default  for  want  of  a  decla- 
ration. 

A.        "I  In  District  Court, 
V.         \  June  Term,  1869. 

B.  &  C.  J  No. 

Whereas,  a  judgment  by  default  for  want  of  a 
declaration  has  been  entered  against  the  said 
plaintiif.  It  is  suggested  that  the  defendant  C, 
as  bailiff  of  the  defendant  B.,  distrained  the  goods 
and  chattels  in  question,  for  rent  due  and  in  arrear 
by  the  plaintiff  to  the  defendant  B.  for  certain 
premises  demised  by  the  said  B.  to  the  plaintiff, 
and  by  the  plaintiff  enjoyed  under  the  said  demise 
at  a  certain  rent,  to  wit,  at  a  rent  of  $  per 

annum,  the  said  jDremises  being  No.  Street, 

which  rent  was  payable  quarterly  (or  as  the 
case  may  be),  to  wit,  on  the  and  at  the  time 

of  the  said  distress,  there  was  due  of  the  said  rent, 
one  quarter's  rent  (or  as  the  case  may  be),  to  wit, 
that  which  came  due  on  the         day  of  A.  D. 


342  APPEIfDIX   II. 

18     ,  being  f        ,  and  that  which  came  due  on  the 
day  of        A.  D.  18     ,  being  also  f      ,  together 
$  due  and  unpaid,  and  the  same  still  remains 

due  to  the  said  B.  and  unpaid,  and  to  recover 
which  he  caused  the  said  distress  to  be  made  as 
aforesaid,  and  he  prays  the  court  to  award  a  writ 
of  inquiry  of  damages  to  assess  his  damages  by 
reason  of  the  premises. 


JPlea  in  har.     Traverse  of  the  demise. 

And  the  plaintiff,  as  to  the  (avowry  or  cogni- 
zance) of  the  defendant,  says,  that  the  defendant, 
by  reason  of  anything  by  him  in  his  said  (avowry 
or  cognizance)  above  alleged,  ought  not  to  avow 
(or,  as  bailiff  of  the  said  G.  H.  acknowledge)  the 
taking  of  the  said  (goods,  etc.),  in  the  place  in 
which,  etc.,  and  justly,  etc.;  because,  he  says,  that 
the  plaintiff  (or  E.  F.)  did  not  hold  or  enjoy  the 
said  dwelling-house  in  which,  etc.,  with  the  appur- 
tenances, as  tenant  thereof  to  the  defendant  (or 
the  said  G.  H.),  under  the  said  supposed  demise 
thereof  in  the  said  avowry  or  cognizance  mentioned, 
in  manner  and  form  as  the  defendant  has  above  in 
his  said  avowry  (or  cognizance)  in  that  behalf 
alleged ;  and  this  he,  the  plaintiff,  prays  may  be 
inquired  of  by  the  country. 


APPENDIX   II.  343 


Plea  in  har,  no  rent  in  arrear. 

Commencement  as  above.  Because  he  says,  that 
no  part  of  the  said  supposed  rent,  in  the  said 
avowry  (or  cognizance)  mentioned,  was  or  is  in 
arrear  from  the  plaintiff  to  the  defendant  (or  G. 
H.),  in  manner  and  form  as  the  defendant  has  in 
avowry  (or  cognizance)  in  that  behalf  alleged  ;  and 
this  the  plaintiff  prays  may  be  inquired  of  by  the 
country,  etc. 


Plea,  eviction. 

Commencement  as  before.  Because  he  says,  that 
the  defendant,  after  the  making  of  the  said  demise 
in  the  said  avowry  mentioned,  and  before  any  part 
of  the  said  rent  therein  mentioned  became  due  or 
in  arrear,  to  wit,  on  ,  with  force  and  arms,  etc., 
entered  into  a  certain  messuage  or  dwelling-house, 
parcel  of  the  said  demised  premises,  in  the  said 
avowry  alleged  to  have  been  demised,  in  and  upon 
the  possession  of  him  the  plaintiff  thereof,  and  him, 
the  said  plaintiff,  from  his  possession  thereof, 
ejected,  expelled,  put  out,  and  amoved,  and  kept 
and  continued  the  plaintiff  so  ejected,  expelled,  put 


344  appe:n^dix  ii. 

out  and  amoved  from  his  possession  thereof,  from 
thence,  until,  and  upon  and  after  the  said  day 
of  ,  A.  D.  1848;  and  this  the  plaintiff  is  ready 

to  verify ;  wherefore,  inasmuch  as  the  said  defen- 
dant has  above  acknowledged  the  taking  of  the 
said  (cattle,  etc.),  in  the  said  place  in  which,  etc., 
he,  the  plaintiff,  prays  judgment  and  his  damages, 
by  reason  of  the  taking  and  unjustly  detaining  the 
same,  to  be  adjudged  to  him,  etc. 


Flea  hy  a  lodger  in  a  tavern  or  l)oarding-liouse^  tvTiose 
goods  have  heeyi  distrained  for  rent  due  hy  the  tenant 

Commencement  as  hefore.  Because,  he  says,  that 
at  the  said  time  when,  etc.,  he,  the  said  plaintiff, 
was  a  boarder  with  O.  P.  (the  tenant)  at  the  said 
place  in  which,  etc.,  and  had  been  such  boarder  for 
a  long  time  before,  to  wit,  for  the  space  of  six 
months,  and  that,  as  such  boarder,  he  had  the  said 
goods  and  chattels  in  the  said  place  in  which,  etc., 
and  that  during  all  the  said  time,  and  at  the  said 
time  when,  etc.,  the  said  O.  P.,  in  the  said  place 
in  which,  etc.,  kept  a  boarding-house ;  and  this  the 
plaintiff  is  ready  to  verify. 


APPENDIX   II.  345 

Avowry,  damage  feasant. 

The  defendant,  by  A.  B.  his  attorney,  well  avows 
(or  in  a  cognizance,  as  bailiff  of  G.  H.  well  acknow- 
ledges) the  taking  of  the  said  goods  and  chattels 
in  the  said  declaration  mentioned,  in  the  said  (close) 
in  which,  etc.,  and  justly,  etc.;  because  he  says, 
that  the  said  place,  in  which,  etc.,  now  is,  and  at 
the  same  time  when,  etc.,  was  the  close,  soil,  and 
freehold  of  him  the  defendant,  and  because  the  said 
cattle  at  the  said  time  when,  etc.,  were  in  the  said 
place  in  which,  etc.,  eating  np  the  grass  there  then 
growing,  and  doing  damage  there  to  the  defendant, 
he  the  defendant  well  avows  the  taking  of  the  said 
cattle  in  the  said  place,  in  which,  etc.,  and  justly, 
etc.,  as  for  and  in  the  name  of  a  distress  for  the 
said  damage  so  there  done  and  doing  as  aforesaid; 
and  this  the  defendant  is  ready  to  verify ;  where- 
fore, he  prays  judgment  and  a  return  of  the  said 
goods  and  chattels,  together  with  the  damages, 
according:  to  the  form  of  the  statute  in  such  case 
made  and  provided,  to  be  adjudged  to  him,  etc. 


I*lea  in  har,  tender  of  amends  hefore  iinj^ounding. 

And  the  plaintiff  as  to  the  (avowry  or  cogni- 
zance) of  the  defendant,  says,  that  the  defendant, 


346  APPENDIX    II. 

by  reason  of  any  thing  by  him  in  his  said  (avowry 
or  cognizance)  above  alleged,  ought  not  to  avow 
(or  as  bailiff  of  the  said  G.  H.  acknowledge)  the 
taking  of  the  said  (cattle,  etc.)  in  the  place  in 
which,  etc.,  and  justly,  etc.  Because  he  says  that 
after  the  taking  of  the  said  cattle  in  the  said  place 
in  which,  etc.,  by  the  defendant,  and  before  the 
impounding  of  the  same,  to  wit,  on  the  same  day 
and  year  in  the  said  declaration  mentioned,  he,  the 
plaintiff,  tendered  and  offered  to  pay  to  the  defen- 
dant a  certain  sum  of  money,  to  wit,  the  sum  of 
f  ,  as  amends  for  the  said  damage  done  to  him, 
the  defendant,  by  the  said  cattle  in  the  said  place 
in  which,  etc.,  as  aforesaid,  and  which  was  then 
sufficient  amends  for  the  same,  which  said  sum  of 
$  the  defendant  then  wholly  refused  to  accept 

from  the  plaintiff,  and  unjustly  detained  the  said 
cattle  against  sureties  and  pledges,  etc.,  until,  etc., 
in  manner  and  form  as  the  plaintiff  hath  above 
thereof  complained  against  him  the  defendant:  and 
this  he,  the  defendant,  is  ready  to  verify.  Where- 
fore, inasmuch  as  the  said  defendant  has  above 
acknowledged  the  taking  of  the  said  (cattle)  in 
the  said  place  in  which,  etc.,  he,  the  plaintiff, 
prays  jndgment  and  his  damages,  by  reason  of  the 
taking  and  unjustly  detaining  the  same,  to  be 
adjudged  to  him,  etc. 


APPENDIX   II.  347 

Plea  in  har,  denial  of  title. 

(Commencement  as  above.)  Because  he  says 
that  the  said  place  in  which,  etc.,  now  is,  and  at 
the  said  time  when,  etc.,  was  the  close,  soil,  and 
freehold  of  him  the  plaintiff,  and  not  the  close,  soil, 
and  freehold  of  him  the  defendant  (or  G.  H),  in 
manner  and  form  as  the  defendant  hath  above  in  his 
said  avowry  (or  cognizance)  in  that  behalf  alleged : 
and  this  he,  the  plaintiff,  prays  may  be  inquired  of 
by  the  country,  etc. 


Plea  that  the  cattle  escaj^ted  through  defect  offences. 

(Commencement  as  above.)  Because  he  says 
that  the  plaintiff,  before  and  at  the  said  time  when, 
etc.,  was  laAvfully  j^ossessed  of,  and  in  a  certain 
close  with  the  appurtenances,  situate,  lying,  and 
being  in  the  county  aforesaid,  and  contiguous  and 
next  adjoining  to  the  said  close  of  the  defendant, 
in  which,  etc.,  and  that  the  defendant  and  all  others, 
the  tenants  and  occupiers  of  the  said  close  in 
which,  etc.,  for  the  time  being,  from  time  whereof 
the  memory  of  man  is  not  to  the  contrary,  have 
repaired  and  amended,  and  have  used  and  been 
accustomed   to   repair    and   amend,   and   of   right 


348  APPENDIX   II. 

ought   to   have   repaired   and   amended,    and    the 
plaintiff  before  and  at  the  said  several  times  when, 
etc.,  of  right  onght  to  have  repaired  and  amended, 
and  still  of  right  ought  to  repair  and  amend  the 
fence  between  the  said  close  of  him  the  plaintiff, 
and   the  said   close   in  which,  etc.,  where  and  as 
often  as  occasion  hath  required,  and  shall  and  may 
require  to  prevent  cattle  lawfully  feeding  and  de- 
pasturing, or  being  in  the  said  close  of  the  plain- 
tiff, from  erring  and  escaping  thereout  through  the 
defects  and  insufficiency  of  the  said  fence,  into  the 
said  close  in  which,  etc.,  and  doing  damage  there; 
and  the  plaintiff  further  says,  that  the  said  fence, 
before  and  at  the   said  several  times  when,  etc., 
was  ruinous,  prostrate,  fallen  down,  and  in  great 
decay,  for  want  of  needful  and  necessary  making, 
repairing,  and  amending  thereof;  by  means  whereof 
the  said  cattle,  in  the  said  declaration  mentioned, 
at  the  said  several  times  when,  etc.,  then  lawfully 
feeding  and  depasturing  in  the  said  close  of  the 
plaintiff,  without  the  knowledge  of  the  plaintiff, 
and  against  his  will,  erred  and  escaped  thereout 
into  the  close  in  which,  etc.,  through  the  defects 
and  insufficiency  of  the  said  fence,  and  remained 
therein  until  the  defendant,  before  the  plaintiff  had 
or  could  have  any  notice  that  the  said  cattle  were 
in  the  said  place  in  which,  etc.,  to  wit,  at  the  said 
time  when,  etc.,  of  his  own  wrong,  took  the  said 


APPENDIX   IT.  349 

cattle  in  the  said  place  in  which,  etc.,  and  nnjnstly 
detained  the  same  against  sureties  and  pledges,  in 
manner  and  form  as  he  the  plaintiff  hath  above 
thereof  complained  against  him  the  defendant:  and 
this  the  plaintiff  is  ready  to  verify.  Wherefore, 
inasmuch  as  the  said  defendant  has  above  acknow- 
Icdg-ed  the  takins:  of  the  said  cattle,  in  the  said 
place  in  which,  etc.,  he,  the  plaintiff,  prays  judg- 
ment and  his  damages,  by  reason  of  the  taking 
and  unjustly  detaining  the  same  to  be  adjudged  to 
him,  etc. 


Replication,  denial  of  liaMity  to  reixiir  the  fences. 

And  the  defendant,  as  to  the  said  plea  in  bar  of 
the  plaintiflP  to  the  avowry  of  him  the  defendant 
above  pleaded,  says  that  he,  by  reason  of  anything 
by  the  plaintiff  in  his  said  plea  in  bar  alleged, 
ought  not  to  be  barred  from  (avowing)  the  taking 
of  the  said  cattle  in  the  said  declaration  mentioned 
in  the  said  place  in  which,  etc.,  and  justly,  etc.: 
because  he  says  that  he,  the  defendant,  and  all 
others,  the  tenants  and  occupiers  of  the  said  close 
in  which,  etc.,  for  the  time  being,  from  time  whereof 
the  memory  of  man  is  not  to  the  contrary,  have  not 
repaired  and  amended,  nor  have  been  used  and 
accustomed  to  repair  and  amend,  nor  of  right  ought 


350  APPEXDIX    II. 

to  have  repaired  and  amended,  nor  ought  the  de- 
fendant before,  or  at  the  said  several  times  when, 
etc.,  of  right  to  have  repaired  and  amended,  nor 
still  of  right  ought  to  repair  and  amend  the  said 
fence  between  the  said  close  of  the  defendant  and 
the  said  close  in  which,  etc.,  when  and  as  often  as 
occasion  hath  required  to  prevent  cattle  feeding  and 
depasturing,  or  being  in  the  said  close  of  the  de- 
fendant, from  erring  or  escaping  thereout,  through 
the  defects  or  insufficiency  of  the  said  fence,  into 
the  said  close  in  which,  etc.,  and  doing  damage 
there,  in  manner  and  form  as  the  plaintiff  hath 
above  in  his  said  plea  in  bar  in  that  behalf  alleged; 
and  of  this  he,  the  defendant,  puts  himself  upon 
the  country,  etc. 


Heplication,  denial  of  defect  of  fences, 

(Commencement  as  above.)  Because,  he  says, 
that  the  said  fence,  in  the  said  plea  in  bar  men- 
tioned, before  or  at  the  said  time  when,  etc.,  was 
not  ruinous,  prostrate,  or  fallen  down  for  want  of 
needful  or  necessary  making,  repairing,  or  amend- 
ing thereof,  in  manner  and  form  as  the  plaintiff  has 
above  in  his  said  plea  in  bar  in  that  behalf  alleged; 
and  of  this,  he,  the  defendant,  puts  himself  on  the 
country,  etc. 


APPEN^DIX    II.  351 

A-Vowry  of  distress  for  arrears  of  ground  rent,  from 
the  case  of  Franciscus  v.  Beigart     4  Watts  98. 

And  the  said  Emanuel  C.  Reigart,  by  William 
ISTorris  his  attorney,  comes  and  defends  the  wrong, 
etc.,  and  injury,  etc.,  when,  etc.,  and  as  the  bailiff 
of  John  B.  Newman,  well  acknowledges  the  tak- 
ing of  the  said  goods  and  chattels  in  the  said  de- 
claration mentioned,  in  the  said  place  which,  etc., 
justly,  etc. ;  because  he  saith  that  the  said  George 
Franciscus,  continually,  from  and  after  the  first 
day  of  May,  A.  D.  1820,  until  the  first  day  of  May, 
A.  D.  1831,  and  at  the  same  time,  etc.,  enjoyed  a 
certain  lot  of  ground,  situate,  etc.,  and  that  the 
said  George  Franciscus,  the  plaintiff,  so  continually 
enjoyed  the  same  lot  for  all  the  time  aforesaid,  as 
the  tenant  of  the  said  John  B.  JN'ewman,  by  virtue 
of  a  certain  demise  or  grant  thereof  from  James 
Hamilton  to  Thomas  Cookson,  his  heirs  and  assigns 
theretofore  made,  at  and  under  the  yearly  rent  of 
eighty  shillings,  sterling  money  of  Great  Britain, 
equal  in  value  to  seventeen  dollars  and  seventy- 
eight  cents,  lawful  money  of  the  United  States, 
payable  yearly  on  the  first  day  of  May,  in  each  and 
every  year  for  ever,  unto  the  said  James  Hamilton, 
his  heirs  and  assigns.  (The  said  George  Francis- 
cus  beinof   the   assio:nee   or   alienee   of   the    said 


352  APPEK^DIX   II. 

Thomas  Cookson,  the  grantor  of  the  said  lot  and 
premises;  and  the  said  John  B.  JS'ewman,  being 
the  grantee  or  alienee  in  fee  simple  of  James 
Hamilton,  the  grantor  of  the  said  lot),  and  because 
one  hundred  and  ninety-five  and  fifty-eight-one- 
hundredths  of  the  rent  aforesaid,  due  and  payable 
by  the  said  George  Franciscus  to  the  said  John  B. 
!N"ewman,  for  eleven  years'  rent  of  the  said  lot  of 
ground,  etc.  etc.,  as  in  the  usual  form. 


Plea  in  bar  to  an  avowry  for  rent,  that  plaintiff  had 
paid  an  equal  sum  to  the  orignal  ground-rent 
landlord. 

And  the  plaintiff  says,  that  the  said  D.,  notwith- 
standing anything  by  him  above  pleaded,  ought 
not  to  avow  the  taking  of  the  said  goods,  etc.,  to  be 
just,  because  he  says,  "  that  A.  A.,  deceased,  in 
his  lifetime  and  at  the  time  of  his  death,  and  the 
said  D.,  from  the  time  of  his  death,  until  and  at 
the  time  when,  etc.,  held  the  said  dwelling-house 
in  which,  etc.,  with  the  appurtenances,  as  tenants 
thereof  to  B.  B.,  at  and  under  the  yearly  rent  of 
fifty  dollars,  to  be  paid  in  quarterly  payments  in 
each  and  every  year,  to  wit,  on,  etc.  etc.,  by  even 
and  equal  portions ;  and  that  before  the  said  time 


APPEK^DIX   II. 


353 


when,  etc.,  the  sum  of  twenty  dollars  of  the  said 
last-mentioned  rent  for  four  years  ending  on,  etc., 
became  due  and  in  arrear  from  the  said  D.  to  the 
said  B.  B.,  and  thereupon  the  said  B.  B.  on  the 
said,  etc.,  demanded  payment  of  the  said  arrears 
of  rent  from  the  said  D.,  but  the  said  D.  then  and 
there  refused  to  pay  the  same ;  whereupon  the  said 
B.  B.  afterwards,  and  before  the  time  when,  etc., 
demanded  the  payment  of  the  said  arrears  of  rent 
from  the  said  C.  C,  as  the  occupier  of  the  said 
dwelling-house,  and  threatened  to  distrain  upon 
the  goods  and  chattels  in  and  upon  the  said  dwell- 
ing-house and  premises  ;  whereupon  the  said  C.  C, 
in  oi-der  to  prevent  the  said  goods  and  chattels,  in 
and  upon  the  said  dwelling-house  and  premises, 
from  being  distrained,  long  before  the  said  time 
when,  etc.,  to  wit,  on,  etc.,  paid  to  the  said  B.  B. 
the  said  twenty  dollars  of  the  rent  aforesaid,  so 
being  in  arrear  and  unpaid  as  aforesaid;  and  so 
the  plaintiff  says,  that  nothing  of  the  said  twenty 
dollars  of  the  rent  aforesaid  was  in  arrear  to  the 
said  D.,  in  manner  and  form  as  the  said  D.  hath 
above  in  his  said  avowry  alleged;  and  this  the 
plaintiff  is  ready  to  verify ;  wherefore,  etc."  See 
Sapsford  v.  Fletcher,  4  T.  R.  511. 


354  APPENDIX   II. 

A-Vowry  hy  one  tenant  in  common. 

(^JJsual  commencement  of  avowry.)  Because,  he 
says,  that  the  plaintiff  for  a  long  time,  to  wit,  for 
the  space  of  years,  next  before  and  ending  on 

and  from  thence  until,  and  at  the  time  when, 
etc.,  held  and  enjoyed  one  undivided  moiety  (the 
whole  into  two  equal  moieties  to  be  divided),  of 
the  said  dwelling-house  in  which,  etc.,  with  the 
appurtenances,  as  tenant  thereof  to  the  said  defen- 
dant, by  virtue  of  a  certain  demise  thereof  to  him 
the  said  plaintiff  theretofore  made,  at  and  under  a 
certain  yearly  rent  of  payable  quarterly,  on  the, 
etc.  (stating  the  entire  rent,  and  the  days  of  pay- 
ment), in  every  year  by  even  and  equal  portions ; 
and  because  one  undivided  moiety  of  the  sum  of 
dollars,  of  the  rent  aftersaid,  for  the  space  of 
ending  as  aforesaid,  on  the  said  day  of 
in  the  year,  etc.,  was  due  and  in  arrear  from  the 
said  plaintiff  to  the  said  defendant;  he  the  said 
defendant  well  avows  the  taking  of  the  said  goods 
and  chattels  in  the  said  declaration  mentioned,  in 
the  said  dwelling-house,  in  which,  etc.,  and  justly, 
etc.,  as  for  and  in  the  name  of  a  distress  for  the 
said  undivided  moiety  of  the  said  rent  so  due,  and 
in  arrear,  and  unpaid  as  aforesaid,  and  which  said 
rent  still  remains  in  arrear  and  unpaid;   and  this 


APPENDIX    11.  355 

the  defendant  is  ready  to  verify ;  wherefore  he 
prays  judgment,  and  a  return  of  the  said  goods 
and  chattels,  together  with  his  damages,  etc.,  ac- 
cording to  the  form  of  the  statute  in  such  case 
made  and  provided,  to  be  returned  to  him.  (Cog- 
nizance of  him  as  baihff  of  the  other  tenant  in 
common.)  And  for  a  cognizance  in  this  behalf 
the  said  defendant,  by  leave  of  the  court  here,  for 
this  purpose  had  and  obtained,  according  to  the 
form  of  the  statute  in  such  case  made  and  provided, 
as  bailiff  of  S.  M.  well  acknowledo-es  the  takinsf  of 
the  said  goods  and  chattels  in  the  said  declaration 
mentioned,  in  the  said  dwelling-house,  in  which, 
etc.,  and  justly,  etc, ;  because  he  says,  etc.  (Cog- 
nizance as  bailiff  of  the  other  tenant  in  common 
for  an  undivided  moiety  of  the  rent  due  to  him, 
similar  to  the  foregoing  avowry.) 


Declaratw7i  on  replevin  hond  against  one  surety. 

In  the  District  Court  for  the  City  and  County 
of  Philadelphia.     June  Term,  1848,  IN'o. 
Philadelphia,  ss. 
A.  B.,  assignee  of  Henry  Lelar,  Sheriff  of  the 
City  and  County  of  Philadelphia,  according  to  the 
form  of  the  Act  of  Assembly,  in  such  case  made 
24 


356  APPENDi:s:  II. 

and  provided,  complains  of  J.  S.  being,  etc.,  of  a 
plea  that  he  render  to  the  said  plaintiff,  as  assignee 
as  aforesaid,  the  sum  of  one  thousand  dollars  which 
he  owes  to,  and  unlawfully  detains  from  him,  the 
said  plaintiff,  assignee  as  aforesaid,  for  that  whereas 
heretofore,  to  wit,  on  the  day  of  A.  D.  184  , 
at  Philadelphia  aforesaid,  the  said  plaintiff  and  one 

C.  R.  distrained  the  goods  and  chattels  of  one  C. 

D.  and  one  E.  F.,  late  partners  trading  as  D.  & 
F.,  for  a  certain  sum  of  money  then  due  to  the  said 
plaintiff  for  rent,  and  the  said  goods  and  chattels 
being  so  distrained,  the  said  C.  D.  and  E.  F.,  after- 
wards and  within  the  space  of  five  days  then  next 
ensuing,  to  wit,  on  the  day  of  A.  D.  184  , 
at  Philadelphia  aforesaid,  sued  forth  and  obtained 
out  of  the  District  Court  for  the  City  and  County 
of  Philadelphia,  returnable  to  the  said  District 
Court,  a  writ  of  replevin  commanding  the  said 
sheriff  that  he  should  replevy  and  cause  to  be  de- 
livered the  said  goods  and  chattels  to  the  said  C. 
D.  and  E.  F.  trading  as  D.  &  F.,  and  thereupon 
the  said  H.  Lelar,  so  being  Sheriff  of  the  City  and 
County  of  Philadelphia,  according  to  the  form  of 
the  Act  of  Assembly  in  such  case  made  and  pro- 
vided, did  take  from  the  said  C.  D.  and  E.  F.,  and 
the  said  defendant  and  one  O.  P.  as  sureties,  a 
bond  in  double  the  value  of  said  goods  and  chattels, 
so  distrained  as  aforesaid ;  and  the  said  C.  D.  and 


APPEN^DIX   II.  357 

E.  F.,  and  one  O.  P.  and  the  said  defendant,  on 
the  day  of  A.  D.  184  ,  by  their  certain  writing 
obligatory,  sealed  with  their  respective  seals,  and 
now  shown  to  the  conrt  here,  the  date  whereof  is, 
to  wit,  the  day  and  year  last  aforesaid,  did  jointly 
and  severally  acknowledge  themselves  to  be  held 
and  firmly  bonnd  unto  the  said  Henry  Lelar,  Es- 
quire, Sherift'  of  the  City  and  County  of  Phila- 
delphia, in  the  said  just  and  full  sum  of  one  thou- 
sand dollars  lawful  money  of  the  United  States,  to 
be  paid  to  the  said  Henry  Lelar,  EsqUire,  his  at- 
torney, executors,  administrators,  or  assigns,  with 
a  condition  thereunder  written  that  if  the  said  C. 
D.  and  E.  F.  should  and  would  prosecute  their 
suit  against  the  said  A.  B.  and  C.  R.  with  effect, 
and  should  and  would  make  return  of  the  said 
goods,  if  return  of  the  same  should  be  adjudged, 
and  should  and  would  also  fi-om  time  to  time,  and 
at  all  times  hereaftei',  well  and  sufficiently  keep  and 
save  harmless  and  indemnified,  the  above  named 
sheriff  and  his  officers,  and  his  and  their  heirs,  ex- 
ecutors, and  administrators,  and  every  of  them  of 
and  from  all  manner  of  suits,  action  or  actions, 
costs  or  charges  whatsoever  that  shall  or  may  ac- 
crue to  him  or  them  by  reason  of  the  replevy  and 
delivery  aforesaid,  that  then  the  above  obligation 
to  be  void  and  of  none  effect,  otherwise  to  be  and 
remain  in  full  force  and  virtue ;  and  thereupon  the 


358  APPENDIX    II. 

said  sheriff  afterwards,  to  wit,  on  the  day  and  year 
last  aforesaid,  according  to  the  exigence  of  said 
writ,  so  as  aforesaid  sued  forth  and  obtained  at  the 
prayer  of  the  said  C  D.  and  E.  F.,  replevied  and 
made  deliverance  of  the  said  goods  and  chattels  to 
the  said  C.  D.  and  E.  F.,  according  to  the  duty  of 
his  said  office,  and  afterwards,  to  wit,  at  the  term 
of  ,  A.  D.  184  ,  in  the  District  Court  for  the 
City  and  County  of  Philadelphia,  the  said  C.  D. 
and  E.  F.,  by  their  attorney,  complained  that  the 
said  plaintiff  and  C.  R.,  on  the        day  of        A. 

D.  184  ,  at  Philadelphia  aforesaid,  in  a  certain 
dwelling-house  in  the  said  declaration  described, 
took  the  goods  and  chattels  of  the  said  C.  D.  and 

E.  F.,  in  the  said  declaration  more  fully  and  parti- 
cularly described,  and  them  unjustly  detained 
against  sureties  and  pledges,  to  the  damage  of  the 
said  C.  D.  and  E.  F.  one  thousand  dollars;  and 
therefore  they  bring  suit.  And  such  proceedings 
were  had  thereupon  in  the  said  plea  in  the  said 
court  at  Philadelphia  aforesaid,  that  afterwards,  to 
wit,  on  the  day  of  A.  D.  184  ,  in  the  said 
District  Court  for  the  City  and  County  of  Phila- 
delphia, and  by  force  of  the  statute  in  such  case 
made  and  provided,  it  was  considered  and  adjudged 
in  and  by  the  said  court  that  the  said  plaintiffs 
take  nothing  by  their  writ  aforesaid,  but  that  they 
and  their  pledges  to  prosecute  be  in  mercy,  etc., 


APPENDIX   II.  359 

and  that  the  said  defendants  do  go  thereof  without 
day,  etc.,  and  that  they  have  a  return  of  the  goods 
and  chattels  taken,  and  it  was  also  considered  that 
the  said  defendant  A.  B.  do  recover  against  the 
said  plaintiffs  the  sum  of  |  ,  heing  the  sum  of 
the  arrears  aforesaid  in  the  form  aforesaid  assessed, 
and  also  $  for  his  costs  by  the  court  then  ad- 

judged to  the  said  defendants,  and  with  their  assent 
according  to  the  form  of  the  statute  in  such  case 
made  and  provided  for  their  costs  and  charges  by 
them  laid  out  about  their  defence  in  that  behalf, 
which  said  arrears,  costs,  and  charges  in  the  whole 
amount  to  $  ,  and  that  the  said  defendants  have 
execution  thereof,  as  by  the  record  and  proceedings 
thereof  now  remaining  in  the  said  District  Court 
at  Philadelphia  aforesaid,  more  fully  appears ;  and 
the  said  plaintiff*  in  fact  saith,  that  the  said  C.  T>. 
and  E.  F.  did  not  prosecute  their  said  action  with 
effect  against  the  said  plaintiff"  for  the  taking  and 
unjustly  detaining  the  said  goods  and  chattels,  and 
have  not  made  a  return  thereof,  according  to  the 
form  and  effect  of  the  said  condition  of  the  said 
writing  obUgatory,  but  have  hitherto  wholly  neg- 
lected and  refused,  and  still  do  neglect  and  refuse 
so  to  do,  whereby  the  said  writing  obligatory  be- 
came forfeited  to  the  said  II.  Lelar,  Esq.,  being 
Sheriff*  of  the  said  City  and  County  of  Philadel- 
phia as  aforesaid ;  and  the  same  being  so  forfeited. 


360  APPEN^DIX    II. 

the  said  sheriff  afterwards,  to  wit,  on  the  day 
of  A.  D.  184  ,  at  Philadelphia  aforesaid,  at  the 
request  and  cost  of  the  said  plaintiff  by  indorse- 
ment assigned  the  said  writing  obligatory  to  the 
said  plaintiff  according  to  the  force  and  effect,  etc., 
as  by  the  said  assignment  indorsed  on  the  said 
writing  obligatory  as  aforesaid,  and  to  the  said 
court  now  here  shown,  the  date  whereof  is  the  day 
and  yeai-  last  aforesaid,  may  more  fully  appear. 
By  means  whereof,  and  by  force  of  the  Act  of 
Assembly  in  such  case  made  and  provided,  an 
action  hath  accrued  to  the  said  plaintiff,  as  assignee 
of  the  said  H.  Lelar,  so  being  Sheriff  of  the  City 
and  County  of  Philadelphia,  to  demand  and  have 
of  and  from  the  said  defendant  the  said  sum  of  one 
thousand  dollars  above  demanded;  yet  the  said 
defendant,  although  often  requested  so  to  do,  hath 
not  as  yet  paid  the  said  sum  of  one  thousand  dol- 
lars above  demanded,  or  any  part  of  them,  to  the 
said  Henry  Lelar,  before  the  said  assignment,  or  to 
the  said  plaintiff"  as  assignee  as  aforesaid,  or  either 
of  them  since  the  said  assignment,  but  hath  hitherto 
wholly  neglected  and  refused  so  to  do,  and  still  doth 
neglect  and  refuse  to  pay  the  same  or  any  part 
thereof,  to  the  said  plaintiff,  assignee  as  aforesaid. 


APPENDIX   II.  361 

Declaration  against  the  sheriff  for  taking  insufficient 
sureties^  when  the  replevin  was  not  of  a  distress  for 
rent. 

For  that,  whereas,  the  said  plaintifi'  on,  etc.,  at 
etc.,  was  possessed  of  one  wagon,  etc.,  of  the  value 
etc.,  of  his  own  proper  goods  and  chattels,  and  that 
the  said  defendant,  on  the  day  and  year  aforesaid, 
was  sheriff,  etc.,  and  the  said  plaintiff  so  of  the 
goods  and  chattels  possessed,  and  he  the  said  de- 
fendant so  as  aforesaid  being  sheriff,  etc.,  the  duty 
of  his  said  office  not  considering,  but  contriving 
and  fraudulently  intending  the  said  plaintiff  of  his 
goods  and  chattels  aforesaid  to  deprive  and  defraud, 
on  the  day  and  year  aforesaid,  at,  etc.,  by  color  of 
his  office  aforesaid,  and  under  the  pretence  of  a 
writ  of  replevin  to  him  directed  and  delivered,  the 
goods  and  chattels  aforesaid,  at,  etc.,  being  found, 
at  the  plaint  of  one  J.  R.,  pretending  the  same 
goods  and  chattels  were  the  proper  goods  and 
chattels  of  the  said  J.  R.,  and  to  the  said  J.  R.  of 
right  to  belong,  and  that  the  said  plaintiff  had 
taken  the  goods  and  chattels  aforesaid,  and  the  same 
unjustly  detained,  against  sureties  and  pledges,  the 
goods  and  chattels  aforesaid  to  be  replevied  from 
the  possession  of  the  said  plaintiff,  to  be  delivered 
to  the  said  J.  R.,  did  cause  and  procure,  without 


362  APPEN^DIX   II. 

sufficient  surety  and  pledges,  or  any  sufficient 
surety,  had  or  taken  to  prosecute  the  said  suit 
and  plaint  of  him  the  said  J.  R.  against  the  said 
plaintiff,  for  the  caption  and  unjust  detention  of  the 
goods  and  chattels  aforesaid,  and  to  make  a  return 
of  the  said  goods  and  chattels  to  the  said  plaintitf, 
if  a  return  should  be  adjudged  to  the  said  plaintiff, 
as  by  the  law  and  custom  of  the  commonwealth  of 
Pennsylvania,  and  the  duty  of  his  office,  and  the 
tenor  of  the  writ  aforesaid,  he  ought  to  have  done. 
And  whereas  afterwards,  to  wit,  on  the  same  day 
and  year  aforesaid,  at,  etc.,  he  the  said  plaintiff  was 
summoned  into  the  court  of  Common  Pleas  of  the 
said  county,  to  appear  on  the  first  Monday  of  March, 
then  next  following,  to  answer  the  said  J.  R.  of  a 
plea,  why  he  took  the  goods  and  chattels  aforesaid, 
and  thereupon  it  was  in  such  manner  proceeded, 
that  by  the  said  court  it  was  considered  that  the 
said  plaintiff  should  have  a  return  of  the  said  goods 
and  chattels  aforesaid,  to  be  delivered  to  him, 
which  said  judgment  remains,  and  is  in  full  force 
and  vigor,  not  reversed  or  annulled ;  and  the  said 
plaintiff  in  fact  saith,  that  the  goods  and  chattels 
aforesaid,  to  the  aforesaid  J.  P.,  by  reason  of  the 
replevin  aforesaid,  so  as  aforesaid  delivered,  to 
places  obscure  and  unknown  were  eloigned,  whereby 
they  cannot  be  returned  or  delivered  to  the  said 
plaintiff,  and  the  said  plaintiff  the  goods  and  chattels 


APPENDIX   II.  363 

aforesaid,  by  the  occasion  aforesaid,  hath  wholly 
lost,  and  is  without  remedy,  to  the  damage  of  the 
said  plaintiff,  etc.^ 


Declaration  against  the  sheriff  for  talcing  insufficient 

sureties. 

For  that  whereas  the  said  plaintiff  heretofore, 
to  wdt,  on,  etc.,  at,  etc.,  in  a  certain  close,  situate, 
etc.  (describe  it  briefly),  took  and  distrained  di- 
vers goods  and  chattels,  to  wit  (here  state  the 
articles),  of  great  value,  to  wit,  of  the  value  of 
$  lawful  money  of  the  United  States,  as  a  dis- 
tress for  certain  arrears  of  rent,  to  wit,  for  the  sum 
of  $  of  like  lawful  money,  then  due  and  owing 

from  one  A.  B.  to  the  said  plaintiff,  for  the  rent 
of  the  said  premises,  with  the  appurtenances,  by 
virtue  of  a  certain  demise  thereof  theretofore  made 
to  the  said  A.  B.,  rendering  rent  for  the  same;  and 
the  said  plaintiff  then  and  there  detained  the  said 
goods  and  chattels  (enumerate  them)  so  taken  and 
distrained  for  the  cause  aforesaid,  according  to  the 
laws  and  customs  of  this  commonwealth,  until  the 
said  defendant,  then  being  the  sheriff  of  the  county 

^  Pearce  v.  Humphreys,  14  S.  &  R.  23. 


364  APPENDIX    II. 

of  Philadelphia,  afterwards,  to  wit,  on  the  day  and 
year  last  aforesaid,  and  within  his  bailiwick  as  such 
sheriff,  to  wit,  at,  etc.,  caused  the  said  goods  and 
chattels  to  be  replevied  and  delivered  to  the  said 
A.  B.,  and  then  and  there  made  deliverance  thereof 
to  the  said  A.  B.,  under  color  of  his  said  office  as 
snch  sheriff  as  aforesaid ;  and  under  pretence  of  a 
certain  writ  of  replevin  issuing  out  of,  and  under 
the  seal  of  (state  the  court),  and  by  which  said 
writ,  the  said  writ  reciting  therein  that  the  said 
A.  B.  also  therein  named,  had  complained  that  the 
said  plaintiff  in  this  suit  had  taken  and  unjustly 
detained  the  said  goods  and  chattels  above  men- 
tioned, and  which  in  the  said  writ  were  alleged  to 
be  the  goods  and  chattels  of  the  said  A.  B.,  the 
said  defendant,  as  sheriff  as  aforesaid,  was  in  and 
by  the  said  writ,  and  in  the  name  of  the  Common- 
wealth of  Pennsylvania,  commanded,  that  if  the 
said  A.  B.  should  make  him  secure  of  prosecuting 
his  claim  with  effect  against  E.  F.,  the  present 
plaintiff,  then  the  said  defendant  as  sheriff  afore- 
said, was  commanded  by  the  said  writ  to  cause 
the  said  goods  and  chattels  to  be  replevied  and 
delivered  to  the  said  A.  B.,  and  also  to  put  by 
sureties  and  safe  pledges  the  said  E.  F.,  so  that  he 
should  be  and  appear  before  the  judges  at  Phila- 
delphia, etc.,  to  answer  the  said  plaintiff  wherefore 
he  took  the  goods  and  chattels  aforesaid,  the  pro- 


APPENDIX  11.  365 

perty  of  the  said  plaintiff,  and  the  same  unjustly 
detained  against  sureties  and  safe  pledges,  and  to 
have  then  there  that  writ,  which  said  writ  duly 
bore  test  the  day  of  as  by  the  said  writ 

remainino-  of  record  in  the  said  court  of 
at,  etc.,  may  fully  and  at  large  appear,  which  said 
writ  had  been  duly  delivered  to  the  said  defendant 
as  sheriff  as  aforesaid,  to  be  executed  according  to 
law,  to  wit,  at,  etc.,  on,  etc.  And  although  it  was 
the  duty  of  the  said  defendant  before  his  making 
deliverance  of  the  said  distress  to  the  said  A.  B. 
as  aforesaid,  in  pursuance  of  the  Act  of  Assembly 
in  such  case  made  aud  provided,  to  take  from  the 
said  A.  B.  and  one  responsible  person  as  surety,  a 
bond  in  double  the  value  of  the  said  goods  and 
chattels  so  distrained  as  aforesaid,  conditioned  for 
the  prosecuting  the  suit  of  replevin  of  the  said  A. 
B.  for  the  taking  of  the  said  goods  and  chattels 
with  effect,  and  without  delay,  and  for  duly  return- 
ing the  goods  and  chattels  so  distrained,  in  case  a 
return  should  be  awarded.  ^Nevertheless  the  said 
defendant  so  being  such  sheriff  as  aforesaid,  not 
regarding  his  duty  in  that  behalf,  but  contriving 
and  wrongfully  and  unjustly  intending  to  injure 
the  said  plaintiff,  and  to  deprive  him  of  the  benefit 
of  his  said  distress,  and  of  the  means  of  obtaining 
satisfaction  for  the  said  arrears  of  rent  so  due  and 
owing  as  aforesaid,  did  not,  nor  would,  before  his 


366  APPENDIX    II. 

makino:  delivei'ance  of  the  said  distress  to  the  said 
A.  B,  as  aforesaid,  take  from  the  said  A.  B.  and 
one  responsible  person  as  surety  as  aforesaid,  such 
a  bond  aforesaid,  conditioned  as  aforesaid ;  but 
wrongfully  and  injuriously  wholly  omitted  and 
neglected  so  to  do,  to  wit,  at,  etc.,  aforesaid,  and 
on  the  contrary  thereof,  he  the  said  defendant, 
sherifl'  as  aforesaid,  wrongfully  and  unjustly  before 
the  replevying  and  delivery  of  the  said  cattle, 
goods  and  chattels  as  aforesaid,  to  wit,  on,  etc.,  at, 
etc.,  aforesaid,  did  take  in  the  name  of  him  the  said 
defendant  sheriff  as  aforesaid,  of  the  said  A.  B. 
and  two  other  persons,  to  wit,  G.  H.  and  J.  K.,  a 
certain  bond,  conditioned  for  the  prosecuting  of 
the  said  suit  of  the  said  plaintiff  with  effect,  and 
without  delay,  and  for  duly  returning  the  said 
cattle,  goods  and  chattels,  so  distrained  as  afore- 
said, in  case  a  return  thereof  should  be  awarded  as 
a  bond  taken  in  pnrsuance  of  the  said  statute: 
!N"evertheless  the  plaintiff  in  fact  saith,  that  the 
said  G.  H.  and  J.  K.,  so  taken  as  sureties  as  afore- 
said, were  not  good,  able,  sufficient  or  responsible 
sureties  for  prosecuting  the  said  suit  with  effect, 
and  without  delay,  or  for  duly  returning  the  said 
cattle,  goods  and  chattels  so  distrained  as  aforesaid, 
in  case  a  return  thereof  should  be  adjudged ;  but 
the  said  G.  H.  and  J.  K.  were  wholly  insufficient 
for  that  pui-pose,  nor  have  the  said  cattle,  goods 


APPENDIX   II.  367 

and  chattels,  or  any  or  either  of  them,  or  any  part 
thereof,  as  yet  been  returned  to  the  said  plaintiff 
in  this  suit,  nor  have  the  said  an-ears  of  rent,  or 
any  part  thereof,  been  as  yet  paid  or  satisfied  to 
the  said  plaintiff  in  this  suit,  nor  hath  the  said 
judgment  been  yet  in  any  way  satisfied,  nor  hath 
the  said  A.  B.  hitherto  answered  to  the  said  plain- 
tiff in  this  suit,  for  the  value  of  the  said  cattle, 
goods  and  chattels  so  distrained  as  aforesaid,  or 
any  or  either  of  them,  or  any  part  thereof,  by 
means  of  which  said  premises  he  the  said  plaintiff 
in  this  suit  hath  been  and  is  wholly  deprived  of 
the  said  cattle,  goods  and  chattels,  and  of  the 
benefit  of  the  said  distress,  and  of  the  means  of 
satisfying  the  said  arrears  of  rent,  and  the  said 
costs  and  charges  by  him  in  that  behalf  expended, 
in  and  about  his  said  suit  in  that  behalf,  and  in 
and  about  the  endeavoring  to  obtain  a  return  of 
the  said  cattle,  goods  and  chattels,  to  wit,  at,  etc., 
aforesaid. 


Declaraiio7i  on  the  claim  j^'^'operty  bond. 

In  the  District  Court  for  the  City  and  County 
of  Philadelphia. 

Philadelphia,  ss. 
C.  D.  was  summoned  to  answer  Henry  Lelar,  Esq., 


368  APPENDIX   II. 

Sheriff  of  the  city  and  county  of  Philadelphia,  of 
a  plea  that  he  render  unto  the  said  plaintiff,  sheriff 
as  aforesaid,  the  sum  of  $  lawful  money  of  the 
United  States,  which  he  owes  to  and  unjustly  de- 
tains from  him,  and  thereupon  the  said  plaintiff, 
sheriff  as  aforesaid,  by  E.  F.  his  attorney,  com- 
plains. For  that,  whereas,  heretofore,  to  wit,  on  the 
day  of  ,  A.  D.  1848,  at  Philadelphia  afore- 

said, A.  B.  sued  forth  and  obtained  out  of  the  Dis- 
trict Court  for  the  city  and  county  of  Philadelphia, 
returnable  to  the  said  District  Court,  a  writ  of 
replevin,  commanding  the  said  plaintiff,  sheriff  as 
aforesaid,  that  he  should  replevy  and  cause  to  be 
delivered  certain  sroods  and  chattels  to  the  said  A. 
B.,  which  one  L.  M.  unjustly  detained  from  him, 
and  thereupon  the  said  Henry  Lelar,  so  being 
sheriff  of  the  city  and  county  of  Philadelphia,  did 
take  from  the  said  A.  B.,  and  J.  K.,  and  O.  P.,  as 
sureties,  a  bond  in  double  the  value  of  the  said 
goods  and  chattels  so  directed  to  be  replevied  as 
aforesaid,  with  a  condition  thereunder  written  that 
if  the  said  A.  B.  should  and  would  prosecute  his 
suit  with  effect  against  the  said  L.  M.,  and  should 
and  would  make  return  of  the  said  goods,  if  return 
of  the  same  should  be  adjudged,  and  should  and 
would  also  from  time  to  time,  and  at  all  times 
thereafter,  well  and  sufficiently  keep  and  save 
harmless   and    indemnified    the   said    plaintiff,    so 


APPENDIX   II.  369 

being  sheriff  as  aforesaid,  and  his  officers,  and  his 
and  their  heirs,  executors,  and  administrators,  and 
every  of  them,  of  and  from  all  manner  of  suits, 
action  or  actions,  costs  or  charges,  whatsoever, 
that  shall  or  may  accrue  to  him  or  them,  by  reason 
of  the  replevy  and  delivery  aforesaid,  that  then  the 
above  obligation  to  be  void  and  of  none  effect, 
otherwise  to  be  and  remain  in  full  force  and  virtue. 
And  thereupon  the  said  sheriff  afterwards,  to  wit, 
on  the  day  and  year  last  aforesaid,  according  to 
the  exigence  of  said  writ  so  as  aforesaid  sued 
forth  and  obtained  at  the  prayer  of  the  said  A,  B., 
attempted  to  replevy  and  make  deliverance  of  the 
said  goods  and  chattels  to  the  said  A.  B.,  but  was 
prevented  from  making  such  replevin  and  deliver- 
ance of  the  said  goods  and  chattels,  by  a  claim  of 
property  in  the  said  goods  and  chattels  interposed 
by  the  said  L.  M.,  and  thereupon  the  said  plaintiff, 
so  being  sheriff  as  aforesaid,  did  take  from  the  said 
L.  M.,  and  the  said  defendant,  and  one  H.  S.  as 
sureties,  a  bond  in  double  the  value  of  the  said 
goods  and  chattels,  as  by  the  law  and  custom  of 
the  commonwealth  of  Pennsylvania,  and  the  duty 
of  his  office,  he  ought  to  have  done.  And  the  said 
L.  M.,  and  one  R.  S.,  and  the  said  defendant,  on  the 
day  of  ,  A.  D.  1848,  by  their  certain  writ- 

ing obligatory,  sealed  with  their  respective  seals, 
and  now  shown  to  the  court  here,  the  date  whereof 


370  APPEN^DIX   II. 

is,  to  wit,  the  day  and  year  last  aforesaid,  did  jointly 
and  severally  acknowledge  themselves  to  be  held 
and  firmly  bound  unto  the  said  Henry  Lelar,  Esq., 
Sheriff  of  the  city  and  county  of  Philadelphia,  in 
the  said  just  and  full  sum  of  one  thousand  dollars, 
lawful  money  of  the  United  States,  to  be  paid  to 
the  said  Henry  Lelar,  Esq.,  his  certain  attorney, 
executors,  administrators,  or  assigns,  with  a  certain 
condition  thereunder  written,  that  if  the  said  L. 
M.  should  and  would  appear  at  the  next  term  of 
the  said  court,  and  then  and  there  make  good  his 
claim  to  the  said  goods  and  chattels,^  and  should 
and  would  well  arid  truly  deliver  up  the  said  goods 
and  chattels  to  the  said  A.  B.,  if  the  property  thereof 
should  he  adjudged  in  the  said  A.  B.,  and  should 
and  would  well  and  truly  abide  by  the  judgment 
of  the  said  court  in  all  things  relating  to  the  pre- 
mises, and  should  also  save  and  keep  harmless,  and 
indemnify  the  said  sheriff  in  the  premises,  then 
the  above  obligation  to  be  void  and  of  none  efiect, 
otherwise  to  be  and  remain  in  full  force  and  virtue, 
and  afterwards,  to  wit,  at  the  term  of  ,  A.  D. 

1848,  in  the  District  Court  for  the  city  and  county 
of  Philadelphia,  the  said  A.  B.,  by  X.  Y.,  his  at- 
torney, complained,  that  the  said  L.  M.,  on  the 

^  This  condition  is  not  in  tlie  bond  as  used  in  Philadelphia. 
The  words  in  italics  are  improperly  in  the  Philadelphia  bond, 
and  should  not  be  declared  on.     See  ante,  306. 


appe:n^dix  II.  371 

day  of  1848,  "at  Philadelphia  aforesaid,  in  a 

certain  dwelling-house,  in  the  said  declaration  de- 
scribed, took  the  goods  and  chattels  of  the  said 
A.  B.,  in  the  said  declaration  more  fully  and  par- 
ticularly described,  and  them  unjustly  detained 
against  sureties  and  pledges,  to  the  damage  of  the 
said  A.  B.  of  one  thousand  dollars,  and  therefore 
he  brought  suit,  and  such  proceedings  were  had 
thereupon  in  the  said  plea,  in  the  said  court  at 
Philadelphia  aforesaid,  that  afterwards,  to  wit,  on 
the  day  of  ,  A.  D.  1848,  in  the  said  District 
Court  for  the  said  city  and  county  of  Philadelphia, 
it  was  considered  and  adjudged,  in  and  by  the  said 
court,  that  the  property  in  the  said  goods  and  chat- 
tels was  in  the  said  plaintiff,  and  it  was  also  con- 
sidered that  the  said  j^laintiff  do  recover  against 
the  said  defendant,  the  sum  of  $  for  the  value 

of  the  said  goods  and  chattels,  and  also  the  sum  of 
$  as  damages  for  the  detention  of  the  said 

goods,  and  also  $  for  his  costs,  by  the  court 

then  adjudged  to  the  said  plaintiff  for  his  costs 
and  charges  by  him  laid  out  about  his  defence  in 
that  behalf,  which  said  value,  damages,  costs  and 
charges,  in  the  whole,  amount  to  the  sum  of  $  , 
and  that  the  said  plaintiff  have  execution  thereof, 
as  by  the  record  and  proceedings  thereof  now  re- 
maining in  the  said  District  Court  at  Philadelphia 
aforesaid,  more  fully  appears;  and  the  said  plaintiff 
25 


372  APPENDIX   II. 

in  fact  saith,  that  the  said  L.  M.  did  not  mcike  good 
Ms  claim  to  the  said  goods  and  chattels,  nor  did  he 
deliver  up  the  said  goods  and  chattels  to  the  said 
A.  B.^  or  well  and  truly  abide  by  the  judgment  of 
the  said  court  in  all  things  relating  to  the  premises, 
or  save  and  keep  harmless  and  indemnified  the 
said  sheriff,  according  to  the  form  and  effect  of  the 
said  condition  of  the  said  writing  obligatory,  but 
hath  hitherto  wholly  neglected  and  refused,  and 
still  doth  neglect  and  refuse  so  to  do,  whereby  the 
said  writing  obligatory  became  forfeited  to  the 
said  plaintiff,  so  being  sheriff  of  the  said  city  and 
county  of  Philadelphia  as  aforesaid;  By  means 
whereof  an  action  hath  accrued  to  the  said  plaintiff, 
so  being  sheriff  of  the  city  and  county  of  Phila- 
delphia, to  demand  and  have  of  and  from  the  said 
defendant  the  said  sum  of  one  thousand  dollars 
above  demanded ;  yet  the  said  defendant,  although 
often  requested  so  to  do,  hath  not,  as  yet,  paid  the 
said  sum  of  one  thousand  dollars  above  demanded, 
or  any  part  thereof  to  the  said  ^^laintiff,  but  hath 
hitherto  wholly  neglected  and  refused,  and  still 
doth  neglect  and  refuse  to  pay  the  same  or  any 
part  thereof  to  the  said  plaintiff,  sheriff  of  the  city 
and  county  of  Philadelphia  as  aforesaid. 

^  See  note  to  page  370,  ante. 


APPENDIX  111. 
Statutes. 

ENGLISH  STATUTES. 

Statute  of  Marlhridge,  52  Henry  dd,  cJu  21,  A.  D. 

1267. 

It  is  provided,  also,  that  if  the  beasts  of  any 
man  be  taken,  and  wrongfully  withholden,  the 
sheriff,  after  compUiint  made  to  him  thereof,  may 
deliver  them  without  let  or  gainsaying  of  him  that 
took  the  beasts,  if  they  were  taken  out  of  liberties, 
and  if  the  beasts  were  taken  within  any  liberties, 
and  the  bailiffs  of  the  liberty  will  not  deliver  them, 
then  the  sheriff,  for  default  of  those  bailifis,  shall 
cause  them  to  be  delivered. 


Statute  of  Gloucester,  6th  Ed.  1,  cli.  1,  sect.  2,  A.  D. 

1278. 

And,  whereas,   before-time,  damages  were   not 
taxed,  but  to  the  value  of  the  issues  of  the  laud. 


374  APPENDIX   III. 

It  is  provided  that  the  demandant  may  recover 
against  the  tenant,  the  costs  of  his  writ  purchased, 
together  with  the  damages  above  said.  And  this 
act  shall  hold  place  in  all  cases  where  the  party 
is  to  recover  damages.  And  every  person,  from 
henceforth,  shall  be  compelled  to  render  damages, 
where  the  land  is  recovered  against  him,  upon  his 
own  intrusion  or  his  own  act. 


Statute  Westminster  2d,  ch.  2, 13  Ud.  1,  A.  D.  1285. 

Forasmuch  as  lords  of  fees,  distraining  their 
tenants  for  services  and  customs  due  unto  them, 
are  many  times  grieved,  because  their  tenants  do 
replevy  the  distress  by  writ  or  without  writ.  And 
when  that  lords,  at  the  complaint  of  their  tenants, 
do  come  by  attachment  into  the  county,  or  unto 
another  court,  having  power  to  hold  pleas  of  with- 
ernam, and  do  avow  the  taking  good  and  laAvful 
by  reason  that  the  tenants  disavow  to  hold  aught, 
nor  do  claim  to  hold  anything  of  him  (which  took 
the  distress,  and  avowed  it),  he  that  distrained  is 
amerced,  and  the  tenants  go  quit.  To  whom  pun- 
ishment cannot  be  assigned  for  such  disavowing 
by  record  of  the  county,  or  of  other  courts  having 
no  record. 


AprEXDix  III.  375 

II.  It  is  provided  and  ordained  from  henceforth, 
that  where  such  lords  cannot  obtain  justice  in 
counties,  and  such  manner  of  courts  against  their 
tenants,  as  soon  as  they  shall  be  attached  at  the 
suit  of  their  tenants,  a  writ  shall  be  granted  to 
them  to  remove  the  plea  before  the  justices,  before 
whom,  and  none  otherwhere,  justice  may  be  min- 
istered unto  such  lords.  And  the  cause  shall  be 
put  in  the  writ,  because  such  a  man  distrained  in 
his  fee  for  services  and  customs  to  him  due. 
l^either  is  this  act  prejudicial  to  the  law  commonly 
used,  which  did  not  permit  that  any  plea  should 
be  moved  before  justices  at  the  suit  of  the  defend- 
ant ;  for  though  it  appear  at  the  first  show  that  the 
tenant  is  plaintiff,  and  the  lord  defendant,  never- 
theless, having  respect  to  that,  that  the  lord  hath 
distrained,  and  sueth  for  services  and  customs 
being  behind,  he  appeareth  indeed  to  be  rather 
actor  or  plaintiff,  than  defendant.  And  to  the  in- 
tent, the  justices  may  know  upon  what  fresh  seizin 
the  lords  may  avow  the  distress  reasonable  upon 
their  tenants.  From  henceforth  it  is  agreed  and 
enacted,  that  a  reasonable  distress  may  be  avowed 
upon  the  seizin  of  any  ancestor  or  predecessor 
since  the  time  that  a  writ  of  novel  disseizin  hath 
run.  And  because  it  chanceth  sometimes  that 
the  tenant,  after  that  he  hath  replevied  his  beasts, 
doth  sell  or  alien  them,  whereby  return  cannot  be 


376  APPEN^DIX    III. 

made  unto  the  lord  that  distrained,  if  it   be  ad- 
judged. 

III.  It  is  provided  that  sheriffs  or  bailiffs  from 
henceforth  shall  not  only  receive  of  the  plaintiffs 
pledges  for  the  pursuing  of  the  suit,  before  they 
make  deliverance  of  the  distress,  but  also  for  the 
return  of  the  beasts,  if  return  be  awarded.  And 
if  any  take  pledges  otherv^^ise,  he  shall  answer  for 
the  price  of  the  beasts,  and  the  lord  that  distraineth 
shall  have  his  recovery  by  writ,  that  he  shall  restore 
unto  him  so  many  beasts  or  cattle ;  and  if  the  bailiff 
be  not  able  to  restore,  his  superior  shall  restore. 
And  forasmuch  as  it  happeneth  some  time,  that 
after  the  return  of  the  beasts  is  awarded  unto  the 
distrainor,  and  the  party  so  distrained,  after  that  the 
beasts  be  returned,  doth  replevy  them  again,  and 
when  he  seeth  the  distrainor  appearing  in  the  court 
ready  to  answer  him,  does  make  default,  whereby 
a  return  of  the  beasts  ought  to  be  awarded  again 
imto  the  distrainor,  and  so  the  beasts  be  replevied 
twice  or  thrice,  and  infinitely,  and  the  judgments 
given  in  the  king's  courts  take  no  effect  in  this 
case,  whereupon  no  remedy  hath  been  yet  provided. 

In  this  case,  such  process  shall  be  awarded,  that  so 
soon  as  return  of  the  beasts  shall  be  awarded  to  the 
distrainor,  the  sheriff  shall  be  commanded  by  a 
judicial  writ  to  make  return  of  the  beasts  unto  the 


APPENDIX    III.  377 

distrainor,  in  which  writ  it  shall  be  expressed  that 
the  sheriff  shall  not  deliver  them  Avithout  writ, 
making-  mention  of  the  judgment  given  by  the  jus- 
tices, which  cannot  be  without  a  writ  issuing  out 
of  the  rolls  of  the  said  justices  before  whom  the 
matter  was  moved.  Therefore  when  he  cometh 
unto  the  justices,  and  desireth  replevin  of  the 
beasts,  he  shall  have  a  judicial  writ,  that  the  sheriff 
taking  surety  for  the  suit,  and  also  of  the  beasts  or 
cattle  to  be  returned,  or  the  price  of  them  (if  return 
be  awarded),  shall  deliver  unto  him  the  beasts  or 
cattle  before  returned,  and  the  distrainor  shall  be 
attached  to  come  at  a  certain  day  before  the  jus- 
tices, afore  whom  the  plea  was  moved  in  the  pre- 
sence of  the  parties.  And  if  he  that  replevied 
make  default  again,  or  for  another  cause,  return  of 
the  distress  be  awarded,  being  now  twice  replevied, 
the  distress  shall  remain  irrepleviable.  But  if  a 
distress  be  taken  of  new,  and  for  a  new  cause,  the 
process  above-said  shall  be  observed  in  the  same 
new  distress. 


378  APPENDIX   III. 

Statute  7th,  Henry  Sth,  ch.  4,  A.  D.  1516. 

(The  act  concerning  avowries  for  rents  and  ser- 
vices.) 

Sect.  III.  And  also  that  every  avowant,  and  every 
other  person  or  persons  that  make  avowry,  coniz- 
ance,  or  knowledge,  or  justify  as  bailey  to  any  other 
person  or  persons  in  aiiy  replegiari  or  second  de- 
liverance, for  any  rent,  custom,  or  service,  if  their 
avowry,  conizance,  or  justification  be  found  for 
them,  or  the  plaintifis  in  the  said  actions  otherwise 
barred,  shall  recover  their  damages  and  costs  that 
they  have  sustained,  as  the  plaintiff  should  have 
done,  if  they  had  recovered  in  the  said  replevins. 


Statute  21si,  Henry  StJi,  ch.  19,  A.  D.  1531. 

(Avowries  shall  be  made  by   the  lord   upon  the 
land,  without  naming  his  tenant.) 

"Whereas,  as  well  the  noblemen  of  this  realm, 
as  divers  other  persons,  by  fines,  recoveries,  grants, 
and  secret  feoffments,  and  leases  made  by  their  ten- 
ants to  persons  unknown  of  the  lands  and  tenements 
holden  of  them,  have  been  put  from  the  knowledge 
of  their  tenants,  upon  whom  they  should  by  order 


APPENDIX   III.  379 

of  the  law  make  their  avowries  for  their  rents,  cus- 
toms, and  services,  to  their  great  losses  and  hin- 
derances. 

II.  Be  it  therefore  enacted,  estabhshed,  and  or- 
dained, by  authority  of  this  present  parliament, 
that  wheresoever  any  manor  lands,  tenements,  and 
other  hereditaments  be  holden  by  any  manner  per- 
son or  persons,  by  rents,  customs,  or  services,  that 
if  the  lord  of  whom  any  such  manor  lands,  tene- 
ments, or  hereditaments  be  so  holden,  distrain  upon 
the  same  manor  lands  or  tenements,  for  any  such 
rents,  customs,  or  services,  and  replevin,  thereof 
be  sued,  that  the  lord  of  whom  the  same  lands, 
tenements,  or  hereditaments  be  so  holden,  may 
avow,  or  his  bailiff  or  servant  make  conusance,  or 
justify  for  taking  of  the  said  distress  upon  the  same 
lands,  tenements,  or  hereditaments  so  holden  as  in 
lands  or  tenements  within  his  fee  or  seignory, 
alleging  m  the  said  avowry,  conizance,  and  justifi- 
cation, the  same  manors,  lands,  and  tenements  to  be 
holden  of  him  without  naming  any  person  certain 
to  be  tenant  of  the  same,  and  without  making  any 
avowry,  justification,  or  conizance  upon  any  person 
certain.  And,  likewise,  the  lord,  baily,  or  servant 
to  make  avowry,  justification,  or  conizance  in  like 
manner  and  form  upon  every  writ  sued  of  second 
deliverance. 


380  APPENDIX   III. 

III.  And  also  be  it  enacted  by  the  said  authority, 
that  every  avoAvant,  and  every  other  person  and 
persons  that  make  any  such  avowry,  justification, 
or  conizance,  as  baily  or  servant  to  any  person  or 
persons  in  any  replegiare,  or  second  deliverance, 
for  rents,  customs,  services,  or  for  damage  feasant, 
or  other  rent  or  rents,  npon  any  distress  taken  in 
any  lands  or  tenements,  if  the  same  avowry,  coniz- 
ance,  or  justification  be  found  for  them,  or  the 
plaintififs  in  the  same  be  non-suit,  or  otherwise 
barred,  that  then  they  shall  recover  their  damages 
and  costs  against  the  said  plaintiff',  as  the  same 
plaintiffs  should  have  done  or  had,  if  they  had  re- 
covered in  the  replegiare  or  second  deliverance 
found  against  the  said  defendants. 

TV.  And  it  be  also  ordained,  that  the  said  plain- 
tiff's and  defendants  in  the  said  writs  of  replegiare, 
or  writs  of  second  deliverance,  and  in  every  of 
them,  shall  have  like  pleas  and  like  aid  prayers  in 
all  such  avowries,  conizances,  and  justifications 
(pleas  of  disclaim  only  except),  as  they  might  have 
had  before  the  making  of  this  act,  and  as  though 
the  said  avowry,  conizance,  or  justification  had  been 
made  after  the  due  order  of  the  common  law. 

y.  And  it  is  further  enacted  by  the  said  autho- 
rity, that  all  such  persons  as  by  order  of  the  com- 


APPENDIX    III.  381 

mon  law  may  lawfully  join  to  the  plaintiffs  or  de- 
fendants in  the  said  writs  of  replegiare  or  second 
deliverance,  as  well  without  process  as  by  process, 
shall  from  henceforth  join  unto  the  said  plaintiffs 
or  defendants,  as  well  without  process  as  by  pi'o- 
cess,  and  to  have  like  pleas  and  like  advantages  in 
all  things  (disclaim  only  except),  as  they  might 
have  done  by  the  order  of  the  common  law  before 
the  making  of  this  act. 


Statute  AtJi,  James  1st,  cli.  3,  A.  D.  1607. 

(An  act  to  give  costs  to  the  defendant  upon  a  non- 
suit of  the  plaintiff,  or  verdict  against  him.) 

"Whereas,  in  the  three  and  twentieth  year  of  King 
Henry  the  Eighth  of  famous  memory,  a  good  and 
profitable  law  was  made,  whereby  it  was  enacted, 
that  in  cases  where  the  plaintiff  in  any  action,  bill, 
or  plaint  of  debt,  trespass  upon  the  case,  detinue, 
accompt,  and  in  some  other  actions  therein  especial- 
ly mentioned,  should  become  non-suit,  or  a  verdict 
should  be  had  against  the  said  plaintiff:  that  then,  in 
such  cases,  the  defendant  should  have  judgment  to 
recover  his  costs  against  every  such  plaintiff,  as  by 
the  said  law  appeareth  ;  which  law  hath  been  found 
to  be  very  good  and  beneficial  for  the  common- 


382  APPEN^DIX   III. 

wealth,  and  thereby  many  have  been  discouraged 
from  bringing  frivolous  and  unjust  suits,  because 
such  parties  are  to  make  recompense  to  the  parties 
unjustly  vexed,  for  the  said  unjust  vexations. 

II.  And  forasmuch  as  actions  of  trespass,  and 
actions  of  ejectione  firmse,  and  many  other  actions 
real  and  personal,  are  within  the  same  mischief,  as 
the  said  other  actions  were  at  the  common  law,  and 
yet  were  omitted  out  of  the  provision  of  the  said 
law.  For  remedy  whereof,  be  it  enacted  by  the 
king's  most  excellent  majesty,  the  lords  spiritual 
and  temporal,  and  the  commons  in  this  present 
parliament  assembled,  and  by  the  authority  of  the 
same,  that  if  any  person  or  persons,  at  any  time 
after  the  end  of  this  present  session  of  parliament, 
shall  commence  or  sue  in  any  court  of  record,  or  in 
any  other  court,  any  action,  bill,  or  plaint  of  tres- 
pass, or  ejectione  firmse,  or  any  other  action  what- 
soever, wherein  the  jjlaintiff  or  defendant  might 
have  costs  (if  in  case  judgment  shonld  be  given  for 
him),  and  the  plaintiff  or  plaintiffs,  demandant  or 
demandants,  in  any  such  action,  bill  or  plaint, 
after  appearance  of  the  defendant  or  defendants  be 
non-suited,  or  that  any  verdict  happen  to  pass  by 
any  lawful  trial  against  the  plaintiff  or  plaintiffs, 
demandant  or  demandants  in  any  such  action,  bill, 
or  plaint,  then  the  defendant   and  defendants,  in 


APPENDIX    III.  383 

every  such  action,  bill,  or  plaint,  shall  have  judg- 
ment to  recover  his  costs  against  every  such  plain- 
tiff and  plaintiffs,  demandant  and  demandants,  to 
be  assessed,  taxed,  and  levied  in  manner  and  form 
as  costs  in  the  said  actions  are  to  be  assessed,  taxed, 
and  levied  in  and  by  the  said  law  of  the  three  and 
twentieth  year  of  King  Henry  the  Eighth. 


Statute  17,  Charles  2d,  ch.  7,  A.  D.  16G5. 

(An  act  for  a  more  speedy  and  effectual  proceeding 
upon  distresses  and  avowries  for  rents.) 

Forasmuch  as  the  ordinary  remedy  for  arrearages 
of  rents  is  by  disti-ess  upon  the  lands  chargeable 
therewith ;  and  yet,  nevertheless,  by  reason  of  the 
intricate  and  dilatory  proceedings  upon  replevins, 
that  remedy  is  become  ineffectual : — 

II.  For  remedy  thereof.  It  is  enacted  by  the 
king's  most  excellent  majesty,  with  the  advice  and 
assent  of  the  lords  spiritual  and  temporal,  and 
commons  in  this  present  parliament  assembled, 
and  by  authority  of  the  same.  That  whensoever 
any  plaintiff  in  replevin  shall  be  non-suit  before 
issue  joined  in  any  suit  of  replevin  by  plaint  or 
writ  lawfully  returned,  removed,  or  depending  in 
any  of  the  king's  courts  at  Westminster,  that  the 


384  APPENDIX    III. 

defendant  making  a  suggestion  in  nature  of  an 
avoAvry  or  cognizance  for  such  rent  to  ascertain 
the  court  of  the  cause  of  distress ;  the  court  u^on 
his  prayer  shall  award  a  writ  to  the  sheriff  of  the 
county  where  the  distress  was  taken,  to  inquire  by 
the  oaths  of  twelve  good  and  lawful  men  of  his 
bailiwick,  touching  the  sum  in  arrear  at  the  time  of 
such  distress  taken,  and  the  value  of  the  goods  or 
cattle  distrained;  and  thereupon  notice  of  fifteen 
days  shall  be  given  to  the  plaintiff  or  his  attorney 
in  court  of  the  sitting  of  such  inquiry.  And  there- 
upon the  sheriff  shall  inquire  of  the  truth  of  the 
matters  contained  in  such  writ,  by  the  oaths  of 
twelve  good  and  lawful  men  of  his  county :  and 
upon  the  return  of  such  inquisition,  the  defendant 
shall  have  judgment  to  recover  against  the  plaintiff 
the  arrearages  of  such  rent,  in  case  the  goods  or 
cattle  distrained  shall  amount  unto  that  value: 
and  in  case  they  shall  not  amount  to  that  value, 
then  so  much  as  the  value  of  the  said  goods  and 
chattels  so  distrained  shall  amount  unto,  together 
with  his  full  costs  of  suit,  and  shall  have  execution 
thereupon  by  fieri  facias  or  elegit,  or  otherwise,  as 
the  law  shall  require;  and  in  case  such  plaintiff 
shall  be  non-suit,  after  cognizance  or  avowry  made, 
and  issue  joined,  or  if  the  verdict  shall  be  given 
against  such  plaintiff;  then  the  jurors  that  are  im- 
panelled or  returned  to  inquire  of  such  issue,  shall 


APPENDIX    III.  385 

at  the  prayer  of  the  defendant,  inquire  concerning 
the  sum  of  the  arrears,  and  the  vahie  of  the  goods 
or  cattle  distrained:  and  thereupon  the  avowant, 
or  he  that  makes  cognizance,  shall  have  judgment 
for  such  arrearages,  or  so  much  thereof  as  the  goods 
or  cattle  distrained  amount  unto,  together  with  his 
full  costs,  and  shall  have  execution  for  the  same  by 
fieri  facias  or  elegit,  or  otherwise  as  the  law  shall 
require. 

III.  And  be  it  further  enacted  by  the  authority 
aforesaid,  that  if  judgment  in  any  of  the  courts 
aforesaid  be  given  upon  demurrer  for  the  avowant, 
or  him  that  maketh  cognizance  for  any  rent,  the 
court  shall,  at  the  prayer  of  the  defendant,  aAvard 
a  writ  to  inquire  of  the  value  of  such  distress  ;  and 
upon  the  return  thereof,  judgment  shall  be  given 
for  the  avowant,  or  him  that  makes  cognizance,  as 
aforesaid,  for  the  arrears  alleged  to  be  behind  in 
such  avowry  or  cognizance,  if  the  goods  or  cattle 
so  distrained  shall  amount  to  that  value.  And  in 
case  they  shall  not  amovmt  to  that  value,  then  for 
so  much  as  the  said  goods  or  cattle  so  distrained 
amount  unto,  together  with  his  full  costs  of  suit, 
and  shall  have  like  execution  as  aforesaid. 

TV.  Provided  always,  and  be  it  enacted,  that, 
in  all  cases  as  aforesaid,  where  the  value  of  the 


386  APPEN^DIX   ITI. 

cattle  distrained  as  aforesaid,  shall  not  be  found  to 
be  to  the  full  value  of  the  arrears  distrained  for, 
that  the  party  to  whom  such  arrears  were  due, 
his  executors  or  administrators,  may  from  time  to 
time  distrain  again  for  the  residue  of  the  said 
arrears. 


Staiute  11,  Geo.  2d,  cli.  19,  §  22,  23,  A.  D.  1738. 

And  whereas  great  difficulties  often  arise  in 
making  avowries  or  conuzance  upon  distresses  for 
rent,  quit  rents,  reliefs,  heriots,  and  other  services, 
Be  it  further  enacted  by  the  authority  aforesaid, 
that  from  and  after  the  said  twenty-fourth  day  of 
June,  1738,  it  shall  and  may  be  lawful  to  and  for 
all  defendants  in  replevin  to  avow  or  make  conu- 
zance generally,  that  the  plaintiif  in  replevin  or 
other  tenant  of  the  lands  and  tenements,  whereon 
such  distress  was  made,  enjoyed  the  same  under  a 
grant  or  demise  at  such  a  certain  rent,  during  the 
time  wherein  the  rent  distrained  for  incurred,  which 
rent  was  then  and  still  remains  due ;  or  that  the 
place  where  the  distress  was  taken  was  parcel  of 
such  certain  tenements,  held  of  such  honor,  lord- 
ship, or  manor,  for  which  tenements,  the  rent,  re- 
lief, heriot,  or  other  service  distrained  for,  was  at 


APPENDIX   III.  387 

the  time  of  such  distress,  and  still  remains  due; 
without  further  setting  forth  the  grant,  tenure, 
demise,  or  title,  of  such  landlord  or  landlords, 
lessor  or  lessors,  owner  or  owners  of  such  manor, 
any  law  or  usage  to  the  contrary  notwithstanding. 
And  if  the  plaintiff  or  plaintiffs  in  such  action 
shall  become  non-suit,  discontinue  his,  her  or  their 
action,  or  have  judgment  given  against  him,  her  or 
them,  the  defendant  or  defendants  in  such  replevin 
shall  recover  double  costs  of  suit. 

XXIII.  And  to  prevent  vexatious  replevins  of 
distresses   taken  for  rent.   Be  it  enacted,  by  the 
authority  aforesaid,  that  from  and  after  the  twenty- 
fourth  day  of  June,  1738,  all  sheriffs,  and  other 
officers,  having  authority  to  grant  replevins,  may 
and  shall  in  every  replevin  for  a  distress  for  rent 
take  in  their  own  names  from  the  plaintiff,  and  two 
responsible  persons  as  sureties,  a  bond  in  double 
the  value  of  the  goods  distrained  (such  value  to 
be  ascertained  by  the  oath  of  one  or  more  credible 
witness  or  witnesses  not  interested  in  the  goods 
or  distress,  which  oath  the  person  granting  such 
replevin  is  hereby  authorized  and  required  to  ad- 
minister), and  conditioned  for  prosecuting  the  suit 
with  effect,  and  without  delay,  and  for  duly  return- 
ing the  goods   and  chattels  distrained,  in  case  a 
return  shall  be  awarded  before  any  deliverance  be 
26 


388  APPEI^DIX   III. 

made  of  the  distress ;  and  that  such  sheriff  or  other 
officer  as  aforesaid  taking  any  such  bond,  shall,  at 
the  request  and  cost  of  the  avowant  or  person 
making  conuzance,  assign  such  bond  to  the  avow- 
ant or  person  aforesaid,  by  endorsing  the  same,  and 
attesting  it  under  his  hand  and  seal  in  the  presence 
of  two  or  more  credible  witnesses ;  which  may  be 
done  without  any  stamp,  provided  the  assignment 
so  endorsed  be  duly  stamped  before  any  action  be 
brought  thereon;  and  if  the  bond  so  taken  and 
assigned  be  forfeited,  the  avowant  or  person  making 
conuzance  may  bring  an  action  and  recover  there- 
upon in  his  own  name ;  and  the  court  where  such 
action  shall  be  brought  may,  by  a  rule  of  the  same 
court,  give  such  relief  to  the  parties  on  such  bond, 
as  may  be  agreeable  to  justice  and  reason;  and 
such  rule  shall  have  the  nature  and  effect  of  a 
defeasance  to  such  bond. 


19  and  20  Vic.  ch.  108. — An  act  to  amend  the  acts 
relating  to  the  County  Courts,  29  July,  1856. 

63.  The  powers  and  responsibilities  of  the  sheriff 
with  respect  to  replevin  bonds  and  replevins  shall 
henceforth  cease ;  and  the  registrar  of  the  county 
court  of  the  district  in  which  any  distress  subject 
to  replevin   shall   be  taken   shall  be  empowered, 


APPEN^Dix  iir.  389 

subject  to  the  regulations  hereinafter  contained,  to 
approve  of  replevin  bonds,  and  to  grant  replevins, 
and  to  issue  all  necessary  process  in  relation  thereto, 
and  such  process  shall  be  executed  by  the  high 
bailiff. 

64.  Such  registi-ar  shall,  at  the  instance  of  the 
party  whose  goods  shall  have  been  distrained, 
cause  the  same  to  be  replevied  to  such  party,  on 
his  giving  one  or  other  of  such  securities  as  are 
mentioned  in  the  next  two  succeeding  sections. 

65,  An  action  of  replevin  may  be  commenced  in 
any  superior  court  in  the  form  applicable  to  personal 
actions  therein,  and  such  court  shall  have  power  to 
hear  and  determine  the  same  ;  and  if  the  replevisor 
shall  wish  to  commence  proceedings  in  any  superior 
court,  he  shall,  at  the  time  of  replevying,  give 
security,  to  be  approved  of  by  the  registrar,  for 
such  an  amount  as  such  registrar  shall  deem  snffi- 
cient  to  cover  the  alleged  rent  or  damage  in  respect 
of  which  the  distress  shall  have  been  made,  and  the 
probable  costs  of  the  cause  in  a  superior  court, 
conditioned  to  commence  an  action  of  replevin 
against  the  distrainor  in  such  superior  court  as 
shall  be  named  in  the  security,  within  one  week 
from  the  date  thereof,  and  to  prosecute  such  action 
with  effect  and  without  delay,  and  unless  judgment 


390  appe:n^dix  hi. 

thereon  be  obtained  by  default,  to  prove  before 
such  superior  court  that  he  had  good  ground  for 
believing  either  that  the  title  to  some  corporeal  or 
incorporeal  hereditament,  or  to  some  toll,  market, 
fair,  or  franchise,  was  in  question,  or  that  such  rent 
or  damage  exceeded  twenty  pounds,  and  to  make 
return  of  the  goods,  if  a  return  thereof  shall  be 
adjudged. 

66.  If  the  replevisor  shall  wish  to  commence 
proceedings  in  a  county  court,  he  shall  at  the  time 
of  replevying  give  security,  to  be  approved  of  by 
the  registrar,  for  such  an  amount  as  such  registrar 
shall  deem  sufficient  to  cover  the  alleged  rent  or 
damage  in  respect  of  which  the  distress  shall  have 
been  made,  and  the  probable  costs  of  the  cause  in 
the  county  court,  conditioned  to  commence  an 
action  of  replevin  against  the  distrainor,  in  the 
county  court  of  the  district  in  which  the  distress 
shall  have  been  taken,  within  one  month  from  the 
date  of  the  security,  and  to  prosecute  such  action 
w^ith  effect  and  without  delay,  and  to  make  return 
of  the  goods,  if  a  return  thereof  shall  be  adjudged. 

67.  Any  action  of  replevin  brought  in  a  county 
court  shall  be  removed  into  any  superior  court  by 
writ  of  certiorari,  if  the  defendant  shall  apply  to 
such  superior  court  or  to  a  judge  there  for  such 


APPEIfDIX   III.  391 

writ,  and  shall  give  security,  to  be  approved  of  by 
the  master  of  such  superior  court,  for  such  amount, 
not  exceeding  one  hundred  and  fifty  pounds,  as 
such  master  shall  think  fit,  conditioned  to  defend 
such  action  with  effect,  and,  unless  the  replevisor 
shall  discontinue  or  shall  not  prosecute  such  action, 
or  become  non-suit  therein,  to  prove  before  such 
superior  court  that  the  defendant  had  good  ground 
for  believing,  either  that  the  title  to  some  corporeal 
or  incorporeal  hereditament,  or  to  some  toll,  market, 
fair,  or  franchise,  was  in  question,  or  that  the  rent 
or  damage  in  respect  of  which  the  distress  shall 
have  been  taken  exceeded  twenty  jDounds ;  and 
every  such  superior  court  shall  have  power  to 
determine  the  same  action. 


23  and  24  Victoria. 

22.  The  provisions  of  an  act  passed  in  the  session 
of  parliament  held  in  the  19  and  20  years  of  the 
reign  of  her  present  majesty,  ch.  108,  which  relates 
to  replevin,  shall  be  deemed  and  taken  to  apply  to 
all  cases  of  replevin  in  like  manner  as  to  the  cases 
of  replevin  of  goods  distrained  for  rent  or  damage. 

23.  The  plaintiff  in  replevin  may,  in  answer  to 
an  avowry,  pay  money  into  court  in  satisfaction,  in 


392  APPENDIX    III. 

like  manner  and  subject  to  the  same  proceeding  as 
to  costs  and  otherwise  as  upon  a  payment  into 
court  by  a  defendant  in  other  actions. 

24.  Such  payment  into  court  in  replevin  shall 
not,  nor  sliall  the  acceptance  thereof  by  the  defen- 
dant in  satisfaction,  work  a  forfeiture  of  the  replevin 
bond. 


PENNSYLVANIA  STATUTES. 

Act  of  1705.     1  Smith's  Laws  44. 

Sect.  XII.  It  shall  and  may  be  lawful  for  the 
justices  of  each  county  in  this  province  to  grant 
writs  of  replevin  in  all  cases  whatsoever,  where 
replevins  may  be  granted  by  the  laws  of  England, 
taking  security  as  the  said  law  directs,  and  make 
them  returnable  to  the  respective  courts  of  com- 
mon pleas,  in  the  proper  county,  there  to  be  de- 
termined accordino;  to  law. 


APPENDIX   III.  393 

Ad  of  21st  March,  1772.     1  Sinlth's  Laws  370. 

(An  act  for  the  sale  of  goods  distrained  for  rent, 
and  to  secure  such  goods  to  tlie  persons  disti'ain- 
ing  the  same,  for  the  better  security  of  lents, 
and  for  other  purposes  therein  mentioned.) 

Whereas,  the  most  ordinary  and  ready  way  for 
recovery  of  arrears  of  rent  is  by  distress,  and  no 
provision  hath  yet  been  made  by  the  laws  of  this 
province,  that  such  distresses  may  be  sold,  and  by 
the  common  law  the  same  may  be  only  detained, 
as  pledges  for  enforcing  the  payment  of  such  rent, 
and  the  persons  distraining  have  little  benefit 
thereby.     For  the  remedying  whereof, 

I.  Sect.  I.  Where  any  goods  or  chattels  shall 
be  distrained  for  any  rent  reserved  and  due,  upon 
any  demise,  lease,  or  contract  whatsoever,  and  the 
tenant  or  owner  of  the  goods  so  distrained  shall 
not,  within  five  days  next  after  such  distress  taken, 
and  notice  thereof,  with  the  cause  of  such  taking, 
left  at  the  mansion  house,  or  other  most  notorious 
place  on  the  premises,  charged  with  the  rent  dis- 
trained for,  replevy  the  same  with  sufficient  surety 
to  be  given  to  the  sheriff*,  according  to  law,  then 
and  in  such  case,  after  such  distress  and  notice  as 
aforesaid,  and  expiration  of  the  said  five  days,  the 


394  APPENDIX  iir. 

person  distraining  shall  and  may  with  the  sheriff, 
under-sheriff,  or  any  constable  in  the  city  or  county 
where  such  distress  shall  be  taken  (who  are  hereby 
required  to  be  aiding  and  assisting  therein),  cause 
the  goods  and  chattels  so  distrained  to  be  appraised 
by  two  reputable  freeholders,  who  shall  have  and 
receive  for  their  trouble  the  sura  of  two  shillings 
per  diem  each,  and  shall  first  take  the  following 
oath  or  aflarmation :  I,  A.  B.,  will  well  and  truly, 
according  to  the  best  of  my  understanding,  appraise 
the  goods  and  chattels  of  C.  D.,  distrained  on  for 
rent  by  E.  F.,  which  oath  or  affirmation  such 
sheriff,  under-sheriff,  or  constable  are  hereby  em- 
powered and  required  to  administer;  and  after 
such  appraisement,  shall  or  may,  after  six  days' 
public  notice,  lawfully  sell  the  goods  and  chattels, 
so  distrained,  for  the  best  price  that  can  be  gotten 
for  the  same,  for  and  towards  satisfaction  of  the 
rent  for  which  the  said  goods  and  chattels  shall  be 
distrained,  and  of  the  charges  of  such  distress,  ap- 
praisement, and  sale,  leaving  the  overplus,  if  any, 
in  the  hands  of  the  said  sheriff,  under-sheriff,  or 
constable,  for  the  owner's  use. 

Sect.  Y.  In  case  any  lessee  for  life,  or  lives, 
term  of  years,  at  will,  or  otherwise,  of  any  mes- 
suages, lands,  or  tenements  upon  the  demise 
whereof  any  rents  are  or  shall  be  reserved  or  made 


APPENDIX  III.  395 

payable,  shall,  from  and  after  the  publication  of 
this  act,  fraudulently  or  clandestinely  convey  or 
carry  off  or  from  such  demised  premises,  his  goods 
and  chattels,  with  intent  to  prevent  the  landlord 
or  lessor  from  distraining  the  same  for  arrears  of 
such  rent  so  reserved  as  aforesaid,  it  shall  and 
may  be  lawful  to  and  for  such  lessor  or  landlord, 
or  any  other  person  or  persons,  by  him  for  that 
purpose  lawfully  emj)Owered,  within  the  space  of 
thirty  days  next  ensuing  such  conveying  away  or 
carrying  off  such  goods  or  chattels  as  aforesaid,  to 
take  and  seize  such  goods  and  chattels,  wherever 
the  same  may  be  found,  as  a  distress  for  the  said 
arrears  of  such  rent,  and  the  same  to  sell  or  other- 
wise dispose  of,  in  such  manner  as  if  the  said  goods 
and  chattels  had  actually  been  distrained  by  such 
lessor  or  landlord  in  and  upon  such  demised  pre- 
mises, for  such  arrears  of  rent. 

Sect.  YI.  Provided,  that  nothing  herein  con- 
tained shall  extend,  or  be  deemed  or  construed  to 
extend,  to  empower  such  lessor  or  landlord  to  take 
or  seize  any  such  goods  or  chattels,  as  a  distress 
for  arrears  of  rent,  which  shall  be  bona  fide,  and 
for  a  valuable  consideration,  sold  before  such 
seizure  made  to  any  person  or  persons  not  privy 
to  such  fraud  as  aforesaid,  anything  herein  to  the 
contrary  notwithstanding. 


396  APPEI^^DIX    III. 

Sect.  YII.    It  shall  and  may  be  lawful  to  and 
for  every  lessor  or  landlord,  lessors  or  landlords,  or 
his,  her,  or  their  bailiff,  receiver,  or  other  person 
or  persons  empowered  by  him,  her,  or  them,  to  take 
and  seize  as  a  distress  for  arrears  of  rent,  any  cat- 
tle or  stock  of  their  respective  tenant  or  tenants, 
feeding  or  depasturing  iipon  all  or  any  part  of  the 
premises  demised  or  holden ;  and  also  to  take  and 
seize  all  sorts  of  corn  and  grass,  hops,  roots,  fruits, 
pulse,  or  other  products  whatsoever,   which  shall 
be  growing  on  any  part  of  the  estate  or  estates  so 
demised  or  holden,  as  a  distress  for  arrears  of  rent, 
and  to  appraise,  sell  or  otherwise  dispose  of  the 
same  towards   satisfaction  of  the  rent  for  which 
such   distress   shall  have  been  taken,  and   of  the 
charges  of  such  distress,  appraisement,  and  sale, 
in  the   same  manner  as  other  goods  and  chattels 
may  be   seized,   distrained,  and  disposed  of;  and 
the  purchaser  of  any  such  corn,  grass,  hops,  roots, 
fruits,    pulse,    or   other  products,  shall   have   free 
egress  and  regress   to  and   from  the  same,  when 
growing,  to  repair  the  fences  from  time  to  time; 
and,  when  ripe,  to  cut,  gather,  make,  cure,  and  lay 
up  and  thrash,  and  after  to  carry  the  same  away, 
in  the  same  manner  as  the  tenant  might  legally 
have  done,  had  such  distress  never  been  made. 

Sect.  X.    And   whereas  great  difficulties  often 
arise  in  making  avowries  or  conusance  upon  dis- 


APPENDIX   III.  397 

tresses  for  rent,  Be  it  enacted,  That  it  shall  and  may 
be  lawful  for  all  defendants  m  replevm  to  avow 
and  make  conusance  generally  that  the  plaintiff  in 
replevin,  or  other  tenant  of  the  lands  and  tene- 
ments whereon  such  distress  was  made,  enjoyed 
the  same  under  a  grant  or  demise,  at  such  a  certain 
rent  or  service,  during  the  time  wherein  the  rent 
or  service  distrained  for  incurred,  which  rent  or 
service  was  then  and  still  remains  due,  without 
further  setting  forth  the  grant,  tenure,  demise,  or 
title  of  such  landlord  or  landlords,  lessor,  or  lessors, 
any  law  or  usage  to  the  contrary  notwithstanding ; 
and  if  the  plaintiff  or  plaintiffs,  in  such  action, 
shall  become  non-suit,  discontinue  his,  her,  or  their 
action,  or  have  judgment  given  against  him,  her, 
or  them,  the  defendant  or  defendants  in  such  re- 
plevin shall  recover  double  costs  of  suit. 

Sect.  XI.  And  to  prevent  vexatious  replevins  of 
distresses  taken  for  i-ent.  Be  it  enacted,  That  all 
sheriffs  and  other  officers,  having  authority  to  serve 
replevins,  may  and  shall,  in  every  replevin  of  a  dis- 
tress for  rent,  take  in  their  own  names  from  the 
plaintiff,  and  one  responsible  person  as  surety,  a 
bond  in  double  the  value  of  the  goods  distrained 
(such  value  to  be  ascertained  by  the  oath  or  affirma- 
tion of  one  or  more  credible  person  or  persons,  not 
interested  in  the  goods  or  distress  j  which  oath  or 


398  APPENDIX   III. 

affirmation  the  person  serving  such  replevm  is 
hereby  authorized  and  required  to  administer),  and 
conditioned  for  prosecuting  the  suit  with  effect  and 
without  delay,  and  for  duly  returning  the  goods 
and  chattels  distrained,  in  case  a  return  shall  be 
awarded,  before  any  deliverance  be  made  of  the 
distress,  and  such  sheriff,  or  other  officer,  as  afore- 
said, taking  any  such  bond,  shall,  at  the  request 
and  costs  of  the  avowant  or  person  making  cogni- 
zance, assign  such  bond  to  the  avowant  or  person 
aforesaid,  by  endorsing  the  same  and  attesting  it 
under  his  hand  and  seal,  in  the  presence  of  two 
credible  witnesses ;  and  if  the  bond  so  taken  and 
assigned  be  forfeited,  the  avowant  or  person  mak- 
ing cognizance  may  bring  an  action  and  recover 
thereon  in  his  own  name;  and  the  court,  where 
such  action  shall  be  brought,  may,  by  a  rule  of  the 
same  court,  give  such  relief  to  the  parties  upon 
such  bond,  as  may  be  agreeable  to  justice  and  rea- 
son; and  such  rule  shall  have  the  nature  and  effect 
of  a  defeasance  to  such  bond. 


APPENDIX    III.  399 

Act  of  3d  April,  1779.  1  Srnith's  Laws  470. 

(An  act  declaring-  i-eplevins,  attachments,  judg- 
ments, and  executions,  in  certain  cases  to  be 
erroneous  and  void.) 

Sect.  I.  Whereas  divers  writs  of  replevin  have 
of  late  been  granted  and  issued  for  goods  and  chat- 
tels taken  in  execution,  and  for  fines  and  penalties 
legally  incurred  and  due  to  this  commonwealth,  to 
the  delay  of  public  justice,  and  to  the  great  vexa- 
tion of  the  officers  concerned  in  taking  and  levying 
the  same : — 

Be  it  enacted, — 

Sect.  II.  All  writs  of  replevin  granted  or  issued 
for  any  owner  or  owners  of  any  goods  or  chattels, 
levied,  seized  or  taken  in  execution,  or  by  distress, 
or  otherwise,  by  any  sheriff",  naval  officer,  lieuten- 
ant, or  sublieutenant  of  the  city  of  Philadelphia 
or  of  any  county,  constable,  collector  of  the  public 
taxes,  or  other  officer,  acting  in  their  several  offi- 
ces nnder  the  authority  of  the  State,  are  irregular, 
erroneous,  and  void ;  and  all  such  writs  may  and 
shall  at  any  time  after  the  service  be  quashed 
(upon  motion)  by  the  court  to  which  they  are  re- 


400  APPENDIX   III. 

turnable,  the   said  court  being  ascertained  of  the 
truth  of  the  fact  by  affidavit  or  otherwise. 

Sect.  III.  The  court,  besides  quashing  the  said 
writs,  may  and  shall  award  treble  costs  to  the  de- 
fendant or  defendants  in  such  writs ;  and  also,  ac- 
cording to  their  discretion,  order  an  attachment 
against  any  prothonotary  or  clerk,  who  shall  make 
out  or  grant  any  such  writ,  knowing  the  same  to 
be  for  goods  or  chattels  taken  in  execution,  or 
seized  as  aforesaid. 


Act  of  25th  March,  1825.   Pamph.  Laws  114. 

(A  supplement  to  an  act  entitled,  "  An  act  for  the 
sale  of  goods  distrained  for  rent,  and  to  secure 
such  goods  to  the  persons  distraining  the  same, 
for  the  better  security  of  rents,  and  for  other 
purposes  therein  mentioned.") 

Sect.  I.  In  case  any  lessee  for  hfe  or  lives,  term 
of  years,  at  will,  or  otherwise,  of  any  messuages, 
lands  or  tenements,  situate  in  the  city  or  county  of 
Philadelphia,  upon  the  demise  whereof  any  rents 
are  or  shall  be  reserved  or  made  payable,  shall,  from 
and  after  the  first  day  of  August  next,  before  such 
rents  as  aforesaid  shall  become  due  and  payable, 


APPENDIX    III.  401 

fraudulently  convey  away  or  carry  off  or  from  such 
demised  pi'emises,  his  goods  and  chattels,  with  in- 
tent to  defraud  the  landlord  or  lessor  of  his  remedy 
by  distress,  it  shall  and  may  be  lawful  to  and  for  such 
landlord  or  lessor,  to  consider  his  rents  so  reserved 
as  aforesaid,  as  apportioned  up  to  the  time  of  such 
conveying  away  or  carrying  off,  and  for  him  or  any 
other  person  or  persons,  by  him  for  that  purpose 
lawfully  authorized,  within  the  space  of  thirty  days 
next  ensuing  such  conveying  away  or  carrying  off 
such  goods  and  chattels  as  aforesaid,  to  take  and 
seize  such  goods  and  chattels,  wherever  the  same 
may  be  found,  as  a  distress  for  such  rents  so 
apportioned  as  aforesaid,  and  the  same  to  sell  or 
otherwise  dispose  of,  in  such  manner  as  if  the  said 
goods  and  chattels  had  been  distrained  by  such 
lessor  or  landlord,  in  and  upon  such  demised 
premises,  for  rents  actually  due  agreeably  to  the 
existing  laws.  Provided  that  such  landlord  or 
lessor,  before  any  such  goods  or  chattels  are  seized 
as  aforesaid,  shall  make  oath  or  affirmation  before 
some  judge,  alderman  or  justice  of  the  peace,  that 
he  verily  believes  that  said  goods  or  chattels  were 
carried  away  for  the  purpose  of  defrauding  as 
aforesaid  :  And,  provided,  that  nothing  herein  con- 
tained shall  extend,  or  be  deemed  or  construed  to 
extend,  to  empower  such  lessor  or  landlord,  to  take 
or  seize  any  such  goods  or  chattels,  as  a  distress, 


402  APPE]N^DIX   III. 

for  such  rents  so  apportioned  as  aforesaid,  which 
shall  be,  bona  fide  and  for  a  vahiable  consideration, 
sold  before  such  seizure  made,  to  any  person  or 
persons  not  privy  to  such  fraud  as  aforesaid,  any 
thing  herein  to  the  contrary  notwithstanding :  And 
provided  also,  that  nothing  herein  contained  shall 
be  construed  to  apply  to  contracts  made  before  the 
passage  of  this  act. 


Act  16  May,  1871. 

§  1.  In  all  actions  of  replevin  now  pending  or 
hereafter  brought  to  recover  timber,  lumber,  coal, 
or  other  property  severed  from  realty,  the  plain- 
tiff shall  be  entitled  to  recover,  notwithstanding 
the  fact  that  the  title  to  the  land  from  which  said 
property  was  severed  may  be  in  dispute.  Pro- 
vided, said  plaintiff  shows  title  in  himself  at  the 
time  of  the  severance. 


Act  10  April,  1873,  Section  1,  Fam.  Laws,  776. 

All  bonds  given  to  the  sheriff  of  the  city  and 
county  of  Philadelphia  in  his  ofl&cial  capacity,  as 
indemnity  for  executing  writs  of  replevin,  foreign, 


APPENDIX    TIL  403 

domestic  and  other  attachments,  and  all  other  bonds 
of  indemnity  given  in  any  cause  shall  be  justified 
before  the  judge  of  the  proper  court  and  approved 
by  said  judge ;  and,  when  the  prothonotary  shall 
certify  said  justification  and  approval  to  the  sheriff, 
shall  become  the  property  of  the  successful  party 
in  the  original  suit,  without  recourse  to  the  sheriff 
who  may  have  executed  said  process  or  received 
said  bond  as  indemnity. 


GENERAL  STATUTES  OF  MASSACHUSETTS. 
Chapter  143.     A.  D.  1859. 

OF   REPLEVIN    OF   PROPERTY. 

Heplevin  of  cattle  distrained. 

Sect.  1.  Any  person,  whose  beasts  are  distrained 
or  impounded,  in  order  to  recover  a  penalty  or  for- 
feiture, supposed  to  have  been  incurred  by  their 
going  at  large,  or  to  obtain  satisfaction  for  damages, 
alleged  to  have  been  done  by  them,  may  maintain 
a  writ  of  replevin  therefor,  to  be  sued  out,  and 
prosecuted  before  a  justice  of  the  peace  or  police 
court  for  the  county,  in  the  same  form,  substan- 
tially, as  heretofore  established  and  used  in  such 
cases. 

27 


404:  APPENDIX    III. 

2.  The  writ  shall  be  sued  out,  served,  returned, 
and  the  cause  shall  be  heard  and  determined,  in 
like  manner  as  is  provided  in  other  civil  actions 
before  a  justice  of  the  peace,  or  police  court,  in  all 
particulars  in  which  a  different  course  is  not  pre- 
scribed. 

3.  The  writ  shall  not  be  served,  unless  the 
plaintiff,  or  some  one  in  his  behalf,  executes  and 
delivers  to  the  officer  a  bond  to  the  defendant,  with 
sufficient  sureties,  to  be  approved  by  the  officer,  in 
a  penalty  double  the  value  of  the  property  to  be 
replevied,  with  condition  to  prosecute  the  replevin 
to  final  judgment,  and  to  pay  such  damages  and 
costs  as  the  defendant  shall  recover  against  him, 
and  also  to  return  the  said  property,  in  case  such 
shall  be  the  final  judgment. 

4.  The  writ  shall  require  that  the  bond  shall  be 
given  in  double  the  value  of  the  property  to  be 
replevied,  but  shall  not  express  the  sum  or  amount 
for  which  it  shall  be  given.  When  the  parties  do 
not  agree  as  to  the  value  of  the  property,  it  shall 
be  ascertained  by  three  disinterested  and  discreet 
persons,  to  be  appointed  and  sworn  by  the  officer, 
and  the  penalty  of  the  bond  shall  be  equal  to  double 
the  value  ascertained  by  such  persons,  or  any  two 
of  them. 


APPENDIX   III.  405 

5.  The  officer  shall  return  such  bond  with  the 
writ,  to  be  left  with  the  justice  or  court  for  the 
use  of  the  defendant ;  he  shall  also  include  in  his 
return,  indorsed  on  the  writ,  a  certificate  of  the 
appointment  of  the  three  appraisers,  the  appraisal, 
and  the  expenses  thereof 

6.  If  it  appears  upon  the  non-suit  of  the  plain- 
tiff, or  upon  a  trial  or  otherwise,  that  the  beasts 
were  lawfully  taken  or  distrained,  the  defendant 
shall  have  judgment  for  the  sum  found  to  be  due 
from  the  plaintiff,  for  the  penalty  or  forfeiture,  or 
for  the  damages,  for  which  the  beasts  were  im- 
pounded, together  with  all  the  legal  fees,  costs, 
charges,  and  expenses,  incurred  by  reason  of  the 
distress,  and  also  the  costs  of  the  action  of  re- 
plevin; or  instead  thereof  a  judgment  for  a  return 
of  the  beasts,  to  be  held  by  the  defendant  irreple- 
viable by  the  plaintiff,  and  for  the  damages  for  the 
taking  thereof  by  the  i-eplevin,  and  for  his  costs. 

7.  When  the  beasts  are  returned  to  the  defen- 
dant, pursuant  to  such  judgment,  they  shall  be  held 
and  disposed  of  in  like  manner  as  if  they  had  not 
been  replevied. 

8.  If  it  appears  upon  the  default  of  the  defen- 
dant, or  upon  a  trial  or  otherwise,  that  the  beasts 


406  APPEN^DIX    III. 

were  taken  or  distrained,  without  any  sufficient  or 
justifiable  cause,  the  plaintiff  shall  have  judgment 
for  his  damages  caused  by  the  unjust  taking  and 
detaining  of  the  beasts,  and  for  his  costs  of  the 
suit. 

9.  "When  it  appears  that  the  sum  demanded  for 
the  penalty,  forfeiture,  or  damages,  exceeds  the 
sum  of  one  hundred  dollars,  or  that  the  property 
of  the  beasts  is  in  question,  and  that  their  value 
exceeds  one  hundred  dollars,  or  that  the  title  to 
real  estate  is  concerned  or  brought  in  question,  the 
case  shall,  at  the  request  of  either  party,  be  trans- 
ferred to  the  Court,  and  be  there  disposed  of,  in 
like  manner  as  is  provided  in  chapter  one  hundred 
and  twenty  with  respect  to  actions  brought  before 
a  justice  of  the  peace,  in  which  the  title  to  real 
estate  is  concerned  or  brought  in  question. 


Replevin  of  other  projjerty. 

10.  When  any  goods  exceeding  in  value  twenty 
dollars,  are  unlawfully  taken  or  detained  from  the 
owner  or  person  entitled  to  the  possession,  or  when 
any  goods  of  that  value  attached  on  mesne  process, 
or  taken  on  execution,  are  claimed  by  a  person 


APPEN-DIX   III.  407 

other  than  the  defendant  in  the  suit,  in  which  they 
are  60  attached  or  taken,  such  owner  or  other 
person  may  cause  them  to  be  replevied. 

11.  When  the  property  alleged  to  be  detained 
does  not  exceed  in  value  one  hundred  dollars,  the 
writ  may  be  sued  out  from,  and  returnable  to  a 
justice  of  the  peace,  or  police  court  for  the  county 
in  which  the  goods  are  detained ;  and  in  all  cases 
the  writ  may  be  sued  out  of  the  superior  court, 
and  shall  in  such  case  be  returnable  to  the  same 
court  for  the  county  in  which  the  goods  are  de- 
tained ;  it  shall  be  substantially  in  the  form  here- 
tofore established  and  used,  and  in  all  particulars, 
in  which  a  different  course  is  not  prescribed,  shall 
be  sued  out,  served  and  returned  like  other  writs 
in  civil  actions. 

12.  The  officer,  before  serving  the  writ,  shall 
take  from  the  plaintiff'  or  some  one  in  his  behalf, 
a  bond  to  the  defendant,  with  sufficient  sureties, 
in  double  the  value  of  the  goods  to  be  replevied, 
conditioned  like  the  bond  hereinbefore  described  to 
be  taken  on  a  writ  of  replevin,  for  beasts  distrained 
or  impounded;  and  the  officer  shall,  in  the  appraisal 
of  the  goods,  and  the  return  of  the  writ,  in  the 
manner  provided  with  respect  to  such  action  for 
beasts  distrained  or  impounded,  except  that  when 
the  writ  is   returnable  to  the  superior  court,  the 


408  APPENDIX  iir. 

bond  shall  be  left  with  the  clerk  of  the  court  for 
the  use  of  the  defendant. 

13.  If  it  appears  upon  the  non-suit  of  the  plain- 
tifif,  or  upon  a  trial  or  otherwise,  that  the  defendant 
is  entitled  to  a  return  of  the  goods,  he  shall  have 
judgment  therefor,  with  damages  for  the  taking  by 
the  replevin,  and  his  costs. 

14.  If  the  goods,  when  replevied,  were  taken 
on  execution,  or  if  they  were  then  attached,  and 
judgment  is  afterwards  rendered  for  the  attaching 
creditor,  and  if  in  either  case  the  service  of  the 
execution  is  delayed  by  means  of  the  replevin,  the 
damages  to  be  assessed  for  the  defendant,  in  case 
of  judgment  for  a  return,  shall  not  be  less  than  at 
the  rate  of  twelve  per  cent,  a  year,  on  the  value  of 
the  goods,  for  so  long  as  the  service  of  the  execu- 
tion is  so  delayed. 

15.  All  sums,  recovered  in  an  action  of  replevin 
by  an  officer,  for  or  on  account  of  goods  attached 
or  taken  in  execution  by  him,  or  recovered  in  an 
action  upon  the  bond  given  upon  the  replevin  of 
such  goods,  shall  be  applied  and  disposed  of,  as  far 
as  they  will  go,  in  the  following  manner:  First, 
to  jiay  the  lawful  fees  and  charges  of  the  officer, 
the  reasonable  expenses  of  the  action  of  replevin. 


APPEN^DIX   III.  409 

and  the  action  on  the  bond,  so  far  as  they  are  not 
■reimbursed  by  the  costs  i-ecovered.  Second,  to 
pay  to  the  creditor,  at  whose  suit  the  goods  were 
attached  or  taken  on  execution,  the  sum,  recovered 
by  him  in  that  suit,  or  as  much  thereof  as  remains 
unpaid,  with  interest  therefor,  at  the  rate  of  twelve 
per  cent,  a  year  so  long  as  the  money  has  been 
withheld  from  the  creditor,  or  the  service  of  his 
execution  delayed  by  reason  of  the  replevin. 
Third,  if  the  attaching  creditor,  in  such  case,  does 
not  recover  judgment  in  the  suit  in  which  the 
attachment  was  made,  or  if  any  balance  remains 
of  the  moneys  so  recovered  by  the  oificer,  after 
paying  what  is  due  to  the  creditor,  the  same  shall 
be  applied  and  disposed  of,  in  the  same  manner  as 
would  and  ought  to  have  been  done  with  the  sur- 
plus, if  any,  of  the  proceeds  of  sale,  in  case  the  same 
goods  had  been  sold  on  execution. 

16.  All  sums  received  by  such  creditor  from  the 
proceeds  of  the  sale  of  goods  attached  or  taken  on 
execution,  and  afterwards  returned,  or  received  for 
the  value  of  any  goods  not  returned,  or  recovered 
from  the  officer  for  the  insufficiency  of  the  sureties 
in  the  bond,  shall  be  applied  towards  the  discharge 
of  the  judgment  recovered  by  the  creditor;  and  all 
sums,  received  as  interest  or  damages  for  the  delay 
of  his  execution,  shall  be  applied  one-half  to  the 


410  APPEIiTDIX   III. 

sole  use  of  the  creditor,  and  the  other  half  in  dis- 
charge of  the  judgment. 

17.  If  it  appears,  upon  default  or  otherwise,  that 
the  goods  were  unlawfully  taken  or  attached,  or 
unlawfully  detained  by  the  defendant,  the  plaintiff 
shall  have  judgment  for  his  damages  caused  thereby, 
and  for  his  costs  of  the  suit. 

General  Provisions, 

18.  If  the  goods  which  are  replevied  had  been 
attached,  they  shall,  in  case  of  judgment  for  a 
return,  be  held  liable  to  the  attachment,  until  final 
judgment  m  the  suit,  in  which  they  were  attached, 
and  for  thirty  days  thereafter,  in  order  to  their 
being  taken  on  execution.  If  such  final  judgment 
is  rendered,  before  the  return  of  the  goods,  or  if 
the  goods  when  replieved  were  seized  and  held  on 
execution,  they  shall  be  held  subject  to  the  same 
attachment  or  seizure  for  thirty  days  after  the 
return,  in  order  that  the  execution  may  be  served 
thereon,  or  the  service  thereof  completed,  in  like 
manner  as  it  might  have  been,  if  the  goods  had  not 
been  replevied. 

19.  The  damages,  in  replevin,  whether  for  the 
plaintiff  or  for  the  defendant,  shall  be  assessed  by 


APPENDIX   III.  411 

the  jury,  by  which  the  cause  is  tried,  if  there  is 
a  trial  by  jury;  otherwise,  they  shall  be  assessed 
upon  an  inquiry  by  the  court,  or  justice,  or  by  a 
jury  impanelled  for  that  purpose,  as  damages  are 
assessed  in  other  civil  actions. 

20.  The  writ  of  return,  in  all  actions  of  replevin, 
shall  be  substantially  in  the  same  form  that  has 
been  heretofore  established  and  used  in  the  like 
case,  and  the  writ  of  reprisal  shall  be  substantially 
in  the  same  form  with  the  writ  heretofore  called  a 
writ  of  withernam. 

21.  The  foregoing  provisions  shall  not  preclude 
the  defendant  from  his  remedy  on  the  replevin 
bond,  or  against  the  officer  for  the  insufficiency  of 
the  sureties  in  the  bond,  to  recover  the  value  of  the 
goods,  together  with  the  loss  or  damage  caused  by 
the  replevin,  notwithstanding  he  has  endeavored 
to  recover  the  same  by  the  writs  of  return  and  of 
reprisal,  as  before  provided. 

22.  If  the  officer,  to  whom  the  writ  of  return  is 
committed,  cannot  find  the  beasts  or  other  goods 
that  were  replevied,  so  as  to  deliver  them  to  the 
defendant,  he  shall  make  a  return  of  that  fact  upon 
the  writ  of  return,  and  the  defendant  shall,  upon 
motion,  be  entitled  to  a  writ  of  reprisal,  to  take 


412  APPENDIX   III.  I 

the  beasts  or   goods  of  the  plahitiff  and   deliver 
them  to  the  defendant,  to  be  held  and  disposed  of     1 
according  to  law. 

23.  ^o  action  shall  be  maintained  against  any 
person,  as  snrety  in  a  replevin  bond,  unless  the 
writ  is  served  on  him  within  one  year  after  the 
final  judgment  in  the  action  of  replevin ;  or  if  the  j 
action  is  not  entered  within  one  year  after  the  end 
of  the  term  at  which  the  action  of  replevin  ought 
to  have  been  entered. 

Sapi^lement^  June  3,  1870,  cli.  309. 

Sect.  1.  Sureties  to  a  replevin  bond  may  be 
approved  by  the  defendant,  in  writing,  or  by  a  mas- 
ter in  chancery ;  and,  when  so  approved,  the  officer 
who  serves  the  writ  of  replevin  shall  not  be  re- 
sponsible for  the  sufficiency  of  such  sureties. 

2.  "When  such  sureties  are  to  be  approved  by  a 
master  in  chancery,  the  officer  who  serves  the  writ 
shall  give  notice  in  writing  to  the  defendant,  or 
the  person  from  whose  custody  the  property  is 
taken,  stating  the  time  and  place  of  hearing  there- 
on, with  the  names  and  places  of  residence  of  the 
persons  proposed  as  sureties,  allowing  not  less  than 
one  hour  before  the  time  appointed  for  the  hearing. 


APPENDIX   III.  413 

and  time  for  travel  at  the  rate  of  not  less  than  one 
day,  for  every  twent^^-four  miles'  travel. 

3.  The  fee  of  the  master  shall  be  one  dollar  for 
the  hearing  and  decision;  and,  if  the  bond  is  ap- 
proved, such  fee  shall  be  taxed  in  plaintiff's  costs, 
if  he  prevail  in  the  suit. 


NEW  YORK  CODE. 


TITLE    V. 


Of  the  manner  of  commencing  civil  actions. 

§  106.  Civil  actions  in  the  Courts  of  Record  of 
this  State  shall  be  commenced  by  the  service  of  a 
summons. 

§  107.  The  summons  shall  be  subscribed  by  the 
plaintiff  or  his  attorney,  and  directed  to  the  defen- 
dant, and  shall  require  him  to  answer  the  com- 
plaint, and  serve  a  copy  of  his  answer  on  the 
person  whose  name  is  subscribed  to  the  summons, 
at  a  place  within  the  State,  to  be  therein  specified, 
in  which  there  is  a  post-office,  within  twenty  days 
after  the  service  of  the  summons,  exclusive  of  the 
day  of  service. 


414  APPENDIX   III. 

§  108.  The  plaintiff  should  also  insert  in  the 
summons  a  notice  in  substance  as  follows : — 

1.  In  an  action  arising  on  contract,  for  the  re- 
covery of  money  only,  that  he  will  take  judgment 
for  a  sum  specified  therein,  if  the  defendant  fail  to 
answer  the  complaint. 

2.  In  other  actions,  that  if  the  defendant  fail  to 
answer  the  complaint,  the  plaintiff  will  apply  to 
the  court  at  a  specified  time  and  place  (after  the 
expiration  of  the  time  for  answering),  for  the  relief 
demanded  in  the  complaint. 

§  109.  A  copy  of  the  complaint  shall  be  served 
with  the  summons. 


TITLE  YII. 


CHAPTER  SECOND. 


Claim  and  delivery  of  personal  property. 

§  206  (181).  The  plaintiff,  in  an  action  to  recover 
the  possession  of  personal  property,  may,  at  the 
time  of  issuing  the  summons,  or  at  any  time  before 


APPENDIX    III.  415 

answer,  claim  the  immediate  delivery  of  such  pro- 
perty, as  provided  in  this  chapter. 

§  207  (182).  AVhere  a  delivery  is  claimed,  an 
affidavit  must  be  made  by  the  plaintiff,  or  by  some 
one  in  his  behalf,  showing, 

1.  That  the  plaintiff  is  the  owner  of  the  property 
claimed  (particularly  describing  it),  or  is  lawfully 
entitled  to  the  possession  thereof,  by  virtue  of  a 
special  property  therein;  the  facts  in  respect  to 
which  shall  be  set  forth : 

2.  That  the  property  is  wrongfully  detained  by 
the  defendant : 

3.  The  alleged  cause  of  the  detention  thereof, 
according  to  his  best  knowledge,  information  and 
belief: 

4.  That  the  same  has  not  been  taken  for  a  tax, 
assessment  or  fine,  pursuant  to  a  statute;  or  seized 
under  an  execution  or  attachment  against  the  pro- 
perty of  the  plaintiff;  or  if  so  seized  that  it  is  by 
statute,  exempt  from  such  seizure ;  and, 

5.  The  actual  value  of  the  property. 

§  208  (183).  The  plaintiff  may,  thereupon,  by  an 
endorsement  in  writing  upon  the  affidavit,  require 


416  APPENDIX  iir. 

the  sheriff  of  the  county  where  the  property  claimed 
may  be,  to  take  the  same  from  the  defendant,  and 
dehver  it  to  the  plaintiff. 

§  209  (184).  Upon  the  receipt  of  the  affidavit  and 
notice,  with  a  written  undertaking,  executed  by  one 
or  more  sufficient  sureties,  approved  by  the  sheriff, 
to  the  effect  that  they  are  bound  in  double  the 
value  of  the  property  as  stated  in  the  affidavit,  for 
the  prosecution  of  the  action,  for  the  return  of  the 
property  to  the  defendant,  if  return  thereof  be 
adjudged,  and  for  the  payment  to  him  of  such  sum 
as  may,  for  any  cause,  be  recovered  against  the 
plaintiff,  the  sheriff  shall  forthwith  take  the  pro- 
perty described  in  the  affidavit,  if  it  be  in  the  pos- 
session of  the  defendant  or  his  agent,  and  retain  it 
in  his  custody.  He  shall,  also,  without  delay,  serve 
on  the  defendant  a  copy  of  the  affidavit,  notice  and 
undertaking,  by  dehvering  the  same  to  him  per- 
sonally, if  he  can  be  found,  or  to  his  agent,  from 
whose  possession  the  property  is  taken;  or  if  neither 
can  be  found,  by  leaving  them  at  the  usual  place  of 
abode  of  either,  with  some  person  of  suitable  age 
and  discretion. 

§  210  (185).  The  defendant  may  within  three 
days  after  the  service  of  a  copy  of  the  affidavit  and 
undertaking,    give   notice   to   the   sheriff  that   he 


APPEN^DIX   III.  417 

excepts  to  the  sufficiency  of  the  siii-eties.  If  he 
fail  to  do  so  he  shall  be  deemed  to  have  waived  all 
objection  to  them ;  when  the  defendant  excepts, 
the  sureties  shall  justify  on  notice,  in  like  manner 
as  upon  bail  on  arrest.  And  the  sheriif  shall  t)e 
responsible  for  the  sufficiency  of  the  sureties  until 
the  objection  to  them  is  either  waived,  as  above 
provided,  or  until  they  shall  justify,  or  new  sureties 
shall  be  substituted,  and  justify.  If  the  defendant 
except  to  the  sureties,  he  cannot  reclaim  the  pro- 
perty as  provided  in  the  next  section. 

§  211  (186).  At  any  time  before  the  delivery  of 
the  property  to  the  plaintiff,  the  defendant  may, 
if  he  do  not  except  to  the  sureties  of  the  plaintiff, 
require  the  return  thereof,  upon  giving  to  the  sheriff 
a  written  undertaking,  executed  by  two  or  more 
sufficient  sureties,  to  the  effect  that  they  are  bound 
in  double  the  value  of  the  property,  as  stated  in  the 
affidavit  of  the  jilalntiff,  for  the  delivery  thereof  to 
the  plaintiff,  if  such  delivery  be  adjudged,  and  for 
the  payment  to  him  of  such  sum,  as  may,  for  any 
cause,  be  recovered  against  the  defendant.  If  a 
return  of  the  property  be  not  so  required  within 
three  days  after  the  taking  and  service  of  notice  to 
the  defendant,  it  shall  be  delivered  to  the  plaintiff, 
except  as  provided  in  section  216. 


418  APPEI^^DIX   III. 

§  212  (187).  The  defendant's  sureties,  upon  a 
notice  to  the  plaintiff,  of  not  less  than  two  nor 
more  than  six  days,  shall  justify  before  a  judge  or 
justice  of  the  peace,  of  the  same  manner  as  upon 
bail  on  arrest;  and  upon  such  justification  the 
sheriff  shall  deliver  the  property  to  the  defendant. 
The  sheriff  shall  be  responsible  for  the  defendant's 
sureties  until  they  justify,  or  until  justification  is 
completed  or  expressly  waived,  and  may  retain  the 
property  until  that  time.  But  if  they  or  others  in 
their  place  fail  to  justify  at  the  time  and  place 
appointed,  he  shall  deliver  the  property  to  the 
plaintiff. 

§  213  (188).  The  qualifications  of  sureties,  and 
their  justification,  shall  be  as  prescribed  by  sec- 
tions 194  and  195,  in  respect  to  bail  upon  an  order 
of  arrest. 

§  214  (189).  If  the  property,  or  any  part  thereof, 
be  concealed  in  a  building  or  inclosure,  the  sheriff 
shall  publicly  demand  its  delivery.  If  it  be  not 
delivered,  he  shall  cause  the  building  or  inclosure 
to  be  broken  open,  and  take  the  property  into  his 
possession ;  and,  if  necessary,  he  may  call  to  his  aid 
the  power  of  his  county. 

§  215  (190).  Where  the  sheriff  shall  have  taken 
property,  as  in  this  chapter  provided,  he  shall  keep 


APPENDIX   III.  419 

it  in  a  secure  place,  and  deliver  it  to  the  party 
entitled  thereto,  upon  receiving  his  lawful  fees  for 
taking,  and  his  necessary  expenses  for  keeping  the 
same. 

§  216.  If  the  property  taken  be  claimed  by  any 
other  person  than  the  defendant  or  his  agent,  and 
such  person  shall  make  affidavit  of  his  title  thereto 
and  right  to  the  possession  thereof,  stating  the 
grounds  of  such  right  and  title,  and  serve  the 
same  upon  the  sheriff,  the  sheriff  shall  not  be 
bound  to  keep  the  property,  or  deliver  it  to  the 
plaintiff,  unless  the  plaintiff,  on  demand  of  him  or 
his  agent,  shall  indemnify  the  sheriff  against  such 
claim  by  an  undertaking  executed  by  two  sufficient 
sureties,  accompanied  by  their  affidavit  that  they 
are  each  worth  double  the  value  of  the  property, 
as  specified  in  the  affidavit  of  the  plaintiff,  and 
freeholders  and  householders  of  the  county,  and  no 
claim  to  such  property  by  any  other  person  than 
the  defendant  or  his  agent  shall  be  valid  against 
the  sheriff,  unless  made  as  aforesaid;  and  notwith- 
standing such  claim,  when  so  made,  he  may  retain 
the  property  a  reasonable  time  to  demand  such 
indemnity.^ 

*  See  Voorhies'  Code,  9tli  Revised  Edition,  1867,  p.  390,  &c 
28 


420  APPENDIX   III. 

§  217.  The  sheriff  shall  file  the  notice  and  afii- 
davit,  with  his  proceedings  thereon,  with  the  clerk 
of  the  court  in  which  the  action  is  pending,  within 
twenty  days  after  taking  the  property  mentioned 
therein. 

The  following  note  is  appended  by  the  commis- 
sioners to  this  chapter : 

This  chapter  is  intended  to  supply  the  pro- 
visional relief,  which  is  now  obtained  in  the  action 
of  replevin.  We  think  it  Avill  be  found  much 
simpler  than  the  statute  for  which  it  is  a  substitute. 

The  most  material  change  which  will  be  ob- 
served, is  in  sections  186  and  187,^  which  provide 
a  means  for  the  defendant's  retaining  the  property, 
on  giving  an  undertaking  equal  to  that  which  the 
plaint iif  has  given.  This  seems  but  just.  The 
defendant  being  in  possession,  is  presumed  to  be 
rightly  so,  until  the  contrary  is  proved;  and  if  he 
is  willing  to  give  as  good  security  as  the  plaintiff, 
he  should  be  allowed  to  retain  the  property  during 
the  litigation. 

^  These  are  the  original  numbers. 


INDEX. 


Abatement, I37 

pleas  and  requisites  of, 

form  of, 

plea  of,  to  avowry, 179^ 

Abuse  of  distress,  plea  in  bar  of,  to  avowry  for  damage 
feasant,      ...... 

for  rent, 

Act  of  assembly  of  Pennsylvania,  1705, 
of  21st  March,  1772, 


.         .       67, 
108,  121,  154, 
167,  184,  243, 
121,  126, 


3d  April,  1779, 

25th  March,  1825, 

24th  February,  1834,  .         .174, 

6th  April,  1802, 

3d  April,  1804, 

13th  April,  1807, 

22d  March,  1817, 

11th  April,  1848,        .         .      121,124, 

3d  March,  1847, 

25th  April,  1850, 

10th  April,  1862, 

15th  May,  1871, 

10th  April,  1873,        .         .         .     800, 

Action.     See  Replevin, 51 

Action  on  the  case  against  sheriff  for  taking  insuflicient 

pledges,    . 
when  maintainable, 
by  whom,     . 


179 
137 
138 
186 

187 
187 
299 
156, 
267 
247 
173 
178 
186 
186 
93 
93 
295 
264 
125 
206 
108 
303 
,67 

297 
298 
298 


422 


INDEX. 


Action  on  the  case  against  sheriff,  extent  of  sheriff's  re- 
sponsibility,  299,  300,  303 
declaration,  .        .     300 

plea,     .        .         .         .301 
evidence,      .        .     301,  302 
damages,      .      286,  287,  288 
Actors,  both  parties  in  replevin  ai'e,  .         .         .     150,  212 

Administrators.     See  Executors. 
Affidavit,  when  necessary. 
Agreement  for  lease  not  evidence  of  tenancy, 
Alabama,  replevin  in, 
Alias  replevin,  .... 
Amendment,      .... 
Amends,  tender  of,    . 
Animals,  ferae  naturae, 

young,  born  since  distress. 
Apprentice  recovered  by  replevin  in  Maryland 
Arrest  in  replevin,  allowed  in  New  York, 
in  execution,  .... 

Arkansas,  definition  of  replevin  in,  . 
regulated  by  statute, 
affidavit,  before  issuing  writ,    . 
defendant  entitled  to  have  goods  valued  by 

jury, 

bond  in,    .         . 
Assignment  of  replevin  bond,  when  may  be, 
how  and  to  whom  to  be  assigned, 
when  assignee  may  sue  in  his  own  name, 
when  not. 
Attachment  against  sheriff  not  granted  for  neglect  to 

take  bond,      .... 
Avowant,  is  an  actor, 
Avowry,  what  it  is,   . 

(For  forms,  see  Appendix  II.,  p.  332. 

when  necessary, . 

when  cannot  be  traversed, 

in  case  of  distress  for  rent, 

several  may  be  filed,   . 

at  common  law,  . 


Ill,  113,414 
194 
53 
57 
133 
205 
101 
101 
101 
113 
248,  251 
53 
67 
111 


212 

270 
272,  284 

284 
285 
285 


297 
150 
150,  151 


140 
141 
150 
151 
151 


Il^DEX. 

4^'6 

Avowry  under  statute,  Geo.  2d,         .... 

153 

must  state  demise, 

158 

name  of  tenant,  ...... 

158 

amount  of  rent,  ...... 

158 

assignee  in  reversion,  how  to  avow,    . 

159 

how  to  be  made  when  tenant  has  assigned. 

162 

,  163 

when  distress  is  for  ground 

rent, 

166 

,167 

for  cattle  damage  feasant. 

167 

as  to  part,  non  cepit  as  to  residue. 

169 

by  two  or  more,  ...... 

169 

must  state  title  correctly,  .... 

170 

by  joint  tenants,          ..... 

176 

by  tenants  in  common,        .... 

. 

177 

when  plaintiff  declares  for  fewer  chattels  than 

were  taken,      ...... 

. 

171 

when  he  declares  for  more. 

. 

172 

when  all  chattels  taken  are  not  replevied,  . 

. 

172 

surplusage  will  not  vitiate, 

. 

172 

for  taking  goods  off  premises  must  show  they 

are  the  tenants, 

. 

173 

by  executors  and  administrators, 

. 

174 

may  be  for  cause  different  from  the  distress, 

. 

174 

parties  to, 

. 

176 

pleas  to  non  tenuit,  non  demisit,  former  distr 

ess, 

no  rent  in  arrear,  etc.,       .       179 

,180 

187 

that  goods  are  privileged,     . 

. 

181 

nil    habuit    in   tenementis   cannot 

be 

pleaded, 

182 

eviction  may  be  pleaded. 

186 

payment  of  taxes, 

186 

abuse  of  distress. 

186 

defect  of  fences,   .... 

188 

Bailiff,  replevin  lies  against, 

126 

cognizance  by,       ...... 

151 

plea  denying  party  to  be,      . 

179, 

205 

evidence  under, 

. 

205 

424 


INDEX. 


Bailiff,  tender  to, 

infancy  of  one  of  several, 

Bankruptcy,  possession  of  assignee  cannot  be  interfered 

with  by  replevin, 

Bar.     See  Pleas,  Avowries. 
Baron  and  Feme.     See  Husband  and  Wife. 
Bees,  replevin  lies  for  swarm  of,        .         .         • 
Begin,  right  to,  ...... 

Bond,  claim  property.     See  Claim  Property  Bond. 
Bond,  Replevin,  condition  of,   . 

under  statutes,        ..... 

ia  Illinois, 

in  Maine, 

in  New  York, 

in  Pennsylvania  taken  in  every  case, 

in  Massachusetts  and  Vermont, 

in  Missouri,  Arkansas,  and  Kentucky,  . 

sheriff  not  bound  to  pursue  statute  strictlj^, 

when  it  may  be  assigned, 

what  will  occasion  forfeiture, 

whether  discharged  by  proceeding,  under  IT  Charles 


205 
178 

92 


.     101 

189,  190 

.     266 

266,267 

.    271 

.    271 

.     272 

269,271,284 

271,272 

.     270 

270,  271 

.     272 

.     272 


2d, 


273,  274 

.     278 


283 
284 

284 
285 

286 


not  discharged  by  so  proceeding,    . 
sureties  liable  for  costs  in  the  replevin  suit, 
to  whom  to  be  assigned, 
when  assignee  may  sue  in  his  own  name, 
when  not,        ...... 

damages  may  be  recovered  to  the  amount  of  pen 

alty, 

value  of  goods  with  interest  from  taking,  and  costs 

of  replevin  suit,usual  measure  of  damages,  285,286, 287 
under  special  circumstances  may  be  greater,  .     285 

when  more  than  one  action  brought  on,  proceedings     290 

stayed  in  all  but  one, 

declaration  on, •         • 

pleadings, 

action  against  sheriff  for  not  taking, 
Borrower  of  chattel  cannot  set  up  ownership  in  himself  in 
answer  to  replevin  by  lender  after  demand,  . 


291 
292 
292 

297 

185 


141 
192 

58 
59 
59 
58 
59 

69 


INDEX.  425 

Capias  ad  satisfaciendum  for  plaintiff,       ....     248 

for  defendant,    .         .         .         .251 
under  17  Charles  2d,         .         .251 
Case.     See  Action  on. 
Cepit  in  alio  loco,  plea  of,  ... 

evidence  under,    . 

Claim  of  property, 

prevents  deliverance,     . 

must  be  returned, 

said  to  determine  suit, 

not  so,  . 

does  not  arrest  proceedings  in  Penn 

sj'lvania, 

proceedings  on  in  New  York,        .     304,  305 
in  other  States  disregarded,          •     309,  310 
advantages  of  the  Pennsylvania  prac- 
tice,   310,  311 

Claim  property  bond, 64,  304 

unknown  in  England,       .         .         .     304 
in  use  in  Pennsylvania  and  Dela 

ware,    ..... 
condition  of,    . 
not  a  statutory  bond, 
action   to  be  brought   in  name  of 

sheriff,  .... 

sureties,  to  what  extent  liable. 

Code  of  procedure, 

writ  of  replevin  abolished  by,     . 

Connecticut,  replevin  in, 

Conusance,  when  necessarj', 

cannot  be  traversed,        .... 

Cognizance,  what  it  is, 

See  Avowry. 
Consideration,  when  necessary  to  restore  before  bringing 

replevin, 90,  91 

Corn,  replevin  for  when  cut, 108,109 

growing, 109 

Costs, •     .     242 


304 
305 
305 

307 

307 

71 

72 

53,  67 

140 

141 

151 


426 


INDEX. 


Costs,  plaintiff  and  defendant  both  entitled  to,         .     242,  243 

double,  when  allowed, 243 

must  be  on  final  judgment, 

not  on  an  award  of  arbitrators  appealed  from, 

how  to  be  taxed, 

when  some  issues  found  for  plaintiff,  and  some  for 

defendant,   . 
treble,  when  allowed, 
security  for,    . 

Coverture,  plea  of,    . 

Crops,  replevin  lies  for  when  distrained, 


244 
244 
245 

246 

247 
247 
179 
108 


Damages  for  the  plaintiff, 


63 

when  the  goods  have  not  been 

delivered  to  him,  .  60,  193,  194 
when  the  goods  have  been  de- 
livered to  him,  .  .  .210 
when  not  entitled,  .  .  .145 
for  the  defendant,  .  211,  218,  219 
do  not  include  the  value  of  pro- 


perty,    . 

. 

211,  219 

aliter  in  Delaware,    . 

211,  219 

Maine, 

.     218 

New  Hampshire, 

211,  219 

New  York, 

212,  219 

Massachusetts,    . 

212,218 

Vermont,     . 

212,  218 

Michigan, 

212,218 

Tennessee, 

212,  218 

Arkansas, 

212,218 

Damage  feasant,  avowry  for  taking. 

.     161 

pleas  to  the  avowry, 

.     179 

Damages  in  the  action  on  the  replevin  bond, 

.     286 

may  equal  the  penalty  of  the  bond,   . 

.     286 

cannot  exceed  it,         .        .        . 

.     289 

include  the  value  of  the  property  when  taken,  .     288 

and  interest  from  the  time  of  taking, 

.     288 

and  costs  in  the  replevin  suit,    . 

• 

.     288 

INDEX. 


427 


Damages  when  replevin  is  of  a  distress  for  rent,      .         .     289 
in  the  action  on  the  claim  property  bond,  .         .     307 
Debt  on  replevin  bond.     See  Bond. 

claim  property  bond.     See  Claim  Property  Bond. 

Declaration  in  replevin, 128   332 

(For  form,  see  Appendix  IL,  p.  332.) 

is  in  the  detinet  or  detinuit,  ....     134 

venue, 129 

in  Wisconsin,         .         .         ,         .         .         .129 

in  Tennessee, 129 

must  state  place  of  taking,   .         .         .         .128 

price  of  goods, 130 

description,  etc., 131 

charges  defendant  with  having  taken,  .         .133 
property  not  in  writ,  not  to  be  included,       .     133 

damages  to  be  stated, 133 

leave  to  amend,      ......     133 

in  the  cepit, 134 

on  the  replevin  bond, 292 

pleas  thereto,  .  .293 
Deeds,  title,  replevin  will  not  lie  for,  ....  109 
De  injuria  not  a  good  plea  to  an  avowry  for  rent;  aliter 

to  an  avowry  for  taking  beasts  damage  feasant,    .         .181 

Delaware,  definition  of  replevin  in    .         .         .         .         .52 

replevin  in,  regulated  by  statute,      ...       67 

defendant  entitled  to  recover  the  value  in,        .     211 

judgment  in  replevin  in,  .         .         .         .     216,  218 

Demand,  when  necessary  before  replevin,          ...       86 

need  not  be  alleged, 87 

when  unnecessar}^, 87,  90,  91 

Discontinuance,  ........     212 

Distress,  merely  a  pledge, 65 

right  to  sell, 65 

a  pledge  at  landlord's  option  since  2d  W.  &  M,       72 

not  so  in  New  York  and  Pennsylvania,     .         72,  75 

Doors,  right  to  break, 113,114,418 


Estray, 
Eviction,  plea  of. 


93 
186 


428 


INDEX. 


Evidence,  under  plea  of  non  cepit,  .  .  .  .  191,  192 
no  rent  arrear,  .  .  .  195,  204 
non  tenuit,  .         .         .     193,  205 

non  deniisit,        ....     193 
tender  of  amends,       .         .         .     205 

property, 206 

when  proceedings  are  under  IT  Charles  2d,       .     205 

Execution,  of  the, 248 

for  the  plaintiff, 248 

for  the  defendant, 248 

capias  in  withernam,        ....     249,  250 
allowed  in  Massachusetts,       ....     254 

not  in  other  States, 254 

under  17  Charles  2d, 251 

stay  of,    .         .         .         .         .         .         .         .     254 

Executors  and  administrators  may  bring  replevin,   .         .123 

avowry  by,         .         .      IH,  178 
Exemption,  disregard  of  right  to,  not  remedied  by  re- 
plevin,    92 

False  pretences,  goods  obtained  on,          .         .         .  89,  90 

when  may  be  replevied,  ...  88,  89 

when  cannot,  .  .  .  .  •  .99 
evidence  to  establish,      ....     207 

Fences,  defect  of  plea  in  bar, 187,  188 

Fieri  facias.     See  Execution. 

Former  distress,  plea  in  bar  of,         ....  179,180 

Fraudulent  removal,  avowry  for  rent  after,       .        .  .173 


General  issue,  properly  none  in  replevin,  . 

not   guilty   made,   by   statute   in 

States,    

Georgia,  replevin  in, 

Ground-rent,  within  act  21st  of  March,  1772,  . 
avowry  for, 

Hire,  replevin  for  goods  let  on, 

Homine  replegiando,  writ  of,    .... 


.     142 
several 

.     148 

.       53 

155,  156 

.     166 


255 


INDEX. 


429 


Ilomine  replegiando,  proceedings  under  in  England,        .     255 

in  New  York,     .     258 
in  Pennsylvania,    261 


Illinois,  definition  of  replevin  in, 
Indiana,  definition  of  replevin  in, 

regulated  by  statute,  . 
Ireland,  writ  of  replevin  in. 
Inquest  of  oflSce, 
Inquir}'.     See  Writ  of. 
Insufllcient  pledges.     See  Sheriff. 


53,  67,130,217 
.  53 
.  67 
.  61 
.      62 


176, 


Joint  owners  must  join  in  replevin,  . 

tenant  cannot  maintain  against  his  co-tenant, 
avowries  by,     ...... 

Judgment  in  replevin, 

of  retorno  habendo,  .         .         .        65,  213, 

for  plaintiff, 

for  defendant,   . 

for  defendant,  M^here  goods  hare  not  been  taken 
as  a  distress,  ...... 

is  a  judgment  of  retorno  habendo,    . 

sometimes  for  the  value, 

when  the  defendant  has  removed  the  goods,    . 

claims  property, 
under  statute  7th  Henry  8th,    .         .         .     220, 
when  property  is  found  part  in  plaintiff  and 

part  in  defendant, 

under  statute  17th  Charles  2d,         .         .     226, 

by  default, 

effect  of,  for  plaintiff,  where  the  goods  have 
not  been  delivered  to  him,    .... 
under  17  Charles  2d,  does  not  discharge  sure- 
ties,  

death  of  one  of  the  defendants,  after  judgment 

on  replevin  bond, 

pending  suit,  . 


125 
125 
177 
213 
218 
214 
215 

216 
217 
217 
220 
220 
229 

221 
229 
231 

232 

277 


295 
296 


430 


INDEX. 


Judgment  in  New  York  and  other  States,  plaintiff  entitled 

to  judgment  of  retorno  habendo,  .         .     309 

and  the  defendant  to  a  judgment  for  the  value,     310 

Jurisdiction, 101 

amount  of  rent  arrear,  whether  determines, 

112,  289 


Kentucky,  replevin  in,       . 

regulated  by  statute, 
affidavit  before  writ  issues, 


53 

6-7 

111 


Land,  replevin  will  not  lie  for,  .         .         .      105,  106,  108 

title  to,  may  be  incidentally  tried,  .         .     106,  108 

Lien,  plea  of, 148 

not  created  by  distress,    ......     248 

Limitations,  statute  of,      .         .        .         .      121,  146,  147,  412 


Maine,  replevin  in,     . 

. 

52,  67,  111 

effect  of  judgment  for  plaintiff. 

. 

.      232,  235 

Market  overt,  effect  of  sale  in,  . 

. 

.       88 

not  known  in  United  States, 

.       91 

Maryland,  replevin  in,        .         .         . 

. 

52,  67 

Massachusetts,  "                ... 

52, 

67, 

86,  94,  95,  111 

Michigan,            "                 ... 

.  52,67 

,113,114,  212 

Minnesota,          "                 ... 

. 

. 

.       53 

Missouri,             "                 ... 

, 

53,  111,270 

Mississippi,        "                ... 

. 

. 

.       54,  111 

New  assignment  not  allowed  in  replevin,  .        .     128,  165 

New  Jerse}^,  replevin  in, 53,67,114 

New  Hampshire,  replevin  in,     .         .         .  52,  67,  211,  218 

New  replevin,  allowed  after  non-suit,        .         .         .  65,  71 

New  York,  two  writs  of  replevin  under  revised  statutes,       86 
writs  abolished  by  code,  ....       86 

New  York,  definition  of  replevin  in,       52,  67,  80,  97,  111,  137, 

184,310 
Nil  habuit  in  tenementis, 182 


i:n^dex. 

431 

Non  cepit,  plea  of, 142 

evidence  under, 

.     191 

Non  est  factum. 

.     186,  293 

Non  demisit,  plea  of. 

.     179 

evidence  under,    . 

.     193 

Non  tenuit,  plea  of. 

.      179,  182,  205 

evidence  under, 

.     193,  194 

No  rent  in  arrear,  plea  of, 

.      180,  205 

evidence  under, 

.     195 

Non-suit,  no  bar  to  new  replevin. 

65,  71 

effect  of  in  Illinois,    . 

.       71 

Not  guilty,  plea  of,    . 

.     148 

Note,  when  necessary  to  restore. 

90,  91 

Ohio,  replevin  in. 


52,  67,  90,  91,111,114 


Parish  records,  replevin  will  lie  for. 

Parties  in  replevin, 

plaintiffs,  executors,  and  administrators, 
husband  and  wife, 
act  of  1848,  .... 
when  several  cannot  join, 
joint  owners  must  join, 
mere  servant  cannot  be, 
defendants,    .... 
to  an  avowry, 
Partner  cannot  maintain  replevin  against  copartner, 
Pennsylvania,  definition  of  replevin  in.     See  the  volume 

passim,  . 
Plaint,  replevin  by, 
Pleas  in  replevin, 

(For  forms,  see  Appendix  IT.,  p.  332.) 
informalities  when  waived, 
in  abatement, 
property. 


evidence  under, 
general  issue, 
non  cepit, 

effect  of, 


.  109 

123,  124,  125 

.  123 

.  123 

.  124 

.  124 

.  125 

.  125 

.  126 

.  176 

.  125 


51,  52 
56,  61 
,  136 


.  136 

.  137 
140, 147 

.  206 
140,  148 
140,  148 

.  140 


432 


INDEX. 


Pleas,  evidence  under, 

statute  of  limitations, 
how  pleaded,    . 
lien,  how  pleaded,    . 
not  guilty,  when  general  issue, 
to  the  avowry, 

to  the  action  on  the  replevin  bond, 
Pledges  de  prosequendo,  . 

de  retorno  habendo,     . 
Pluries  replevin, 

returnable,  . 
Pi*8ecipe,  Appendix  I. 
Property,  when  and  how  pleaded, 
evidence  under, 
effect  upon  of  verdict  for  plaintiff, 
Property  bond.  See  Claim  Property  Bond. 
Proprietate  probanda.     See  Writ  of. 


191 

146 

146 

148 

148 

119 

293 

5-7 

57 

59 

60 

315 

140 

206 

214 


.       59 
66,  67,  70 


Recordari  facias  loquelam,        .... 

Recaption,  writ  of, 

Rent,  avowry  for.     See  Avowry. 

Rent  charge  or  annuity,  not  within  11  Geo.  2d, 

ground,  within  act  21st  March,  1772, 
Replevin,  definition  of,  by  Gilbert,  see  Writ  of, 

Blackstone, 
Spelman, 
in  Pennsylvania, 

Maine,  New  Hampshire,  Yer- 

mont, 

Massachusetts,  New  York, 
Ohio,  Maryland,  Delaware,     . 
Kentucky,  Missouri,  Wisconsin, 
Arkansas,   Tennessee,   Michi- 
gan,      

Indiana,  Minnesota, 
Rhode  Island,  Nebraska, 
New  Jersej^, Illinois,  and  South 
Carolina,      .... 
Yirginia,    Georgia,    Connecti- 
cut, and  Alabama, 


155 
156 
51 
51 
51 
51 

52 
52 
52 
53 

53 
53 
53 

53 

53 


INDEX. 


433 


Replevin,  definition  of,  in  Mississippi,      ....       54 
taking  must  be  unlawful,  when  ...       53 

confined  to  distresses  and  attachments,  where  .      54 
lies  only  for  distress  for  rent,  where  .         .       54 

histor}'  of, 54 

originally  a  justicial  writ,  .         .         .       55,110 

writ  of,  did  not  contain  summons,     .         .       55,  110 

obsolete  in  England, 60 

allowed  after  non-suit, 65 

how  begun  in  Pennsylvania,      ....       67 
writ,  to  whom  addressed,  ...  67,  68 

not  altogether  in  I'em, 69 

not  defeated  by  claim  of  property,    .         .         .68 

counter,  when  allowed, 122 

after  non-suit, 71 

for  what  it  will  lie, 76 

will  lie  against  sheriff's  vendee,        .         .         91,  92 
not  against  goods  in  hands  of  sheriff,        .         .       92 

or  other  oflEicer, 93 

not  so  in  Massachusetts, 92 

will  lie  for  money, 100 

for  leather  made  into  shoes,  .         .         .100 
for  a  swarm  of  bees,      .         .         .         .100 
for  corn,  or  oil,  or  other  commodity  of 
the  plaintiff  wrongfully  taken  by  de- 
fendant and  mixed  with  his  property, 

101,  101 
not  the  remedy  for  a  disregard  of  the  exemjition 

law, 92 

for  the  increase  of  animals,       .         .         .         .101 

not  for  animals  ferae  naturae,     .         .         .         .101 

for  an  apprentice,      .         .         .         .         .         .101 

for  goods  taken  be3'ond  seas,    .         .         .         .101 

for  a  ship,  but  not  after  condemnation  as  a  prize,     1 02 

not  for  land, .105 

for  sheaves  of  corn, 108 

not  for  title  deeds, 109 

for  parish  records, 109 


434 


INDEX. 


Replevin,  whether  a  local  action, 116 

may  issue  at  any  time  before  sale  of  distress,  .     121 

bond.     See  Bond, 266 

Replication  to  plea, 179,  186 

Retorno  habendo,  judgment  of  effect  of,   ....     165 

see  writ  of.     See  Judgment. 
Return,  what  may  be  made,       ....      114,115,238 
Rhode  Island, 53 

Second  deliverance,  writ  of, 58 

Set-off,  plea  of, 180 

Sheriff  might  hold  plea  in  replevin  of  any  value,      .         60,  61 
and  of  all  goods  and  chattels,       .         .         .         60,  61 

must  return  writ, 114,  115 

when  liable  to  trespass,  ....  117,121 
action  against,  for  not  taking  bond,  .  .  .  297 
for  taking  insufficient  pledges,  ....  297 
court  will  not  grant  an  attachment,       .         .         .     297 

action  on  the  case  for, 297 

when  it  maj'  be  brought, 297 

may  be  sued  on  his  official  bond,  .         .         .     298 

whether  liable  in  all  cases  for  not  taking,  .  .  298 
answerable  for  the  sufficiency  of,  .  .  .  .  298 
in  England  at  time  of  taking,  ....  299 
in  Pennsylvania  at  end  of  suit,     ....     299 

declaration, 301 

evidence,  etc., 301,  302 

right  to  break  doors,      ....      113,114,418 

South  Carolina,  replevin  in, 53 

Stranger  may  have  replevin, 94 

Strays,  sale  of, •         .       93 

Summons,  writ  in  England  does  not  contain,   .         .         .110 
aliter  in  the  United  States,       .         .         .         .110 

Sureties  in  replevin, 61 

two  always  taken, 266,  271 

not  discharged  by  proceeding  under  17  Charles 

2d, 273 

liable  for  the  value  at  time  of  taking,  .        .     286 


INDEX.  435 

Sureties  linble  for  interest, 287 

and  costs  of  replevin  suit,  ....     284,  287 
for  the  amount  of  rent,  if  value  equals  that  sum, 

286,  288 
if  not  for  value,  with  interest  and  costs,  .  .  28'J 
if  the  value  is  greater,  then  for  amount  of  rent,  .  289 
action  against  sheriff  for  taking  insufficient.    See 

Sheriff, .297 

Surplusage  will  not  vitiate  avowrj^,  .         .        .        ^         .172 

Statutes  (see  Appendix  III.) 373 

Statutes,  of  Marlbridge,  52  H.  3d,  c.  21,  replevin,  plaint,    55,  61 

of  Gloucester,  6  Ed.  1st,  c.  1st,  c.  1,  costs,  .     242 

of  Westminster,  1st  ch.  17,  breaking  doors,         .     113 

2d,  Pledges,  etc.,       .    57,  59,  71,  266 

7  Hen.  8,  c.  4,  avowries,  damages,  execution, 

costs, 242 

21st  Hen.  8,  c.  19,  avowry,  tenant,  etc.,          .     242 
not  in  force  in  Pennsylva- 
nia,       .         .         .         .162 
adopted  in  New  York,      .     163 
82  Hen.  8,  c.  37,  avowry,  executors,       .        .     243 
4th  James  1st,  c.  3,  costs,       ....     243 
17th  Chas.  2d,  c.  7,  inquiry,  distress,   205,  211,  226 
to  what  it  applies,  .     229,  243 
whether  in  force  in  Penns^dvania,  .         .     228 

judgment  under,  does  not  discharge  surety,  .     277 
2d  Wm.  and  Mary,  distress,  corn,  .         .       72 

4th  Anne,  c.  16,  pleading,  costs,  etc.,  243,  244,-245 
11th  Geo.  2d,  c.  19,  distresses,  replevin  bonds, 
108,  153,  156,  157,  159,  161,  167,  173,  182,  184, 
243,  266,  277,  287,  29i),  364 
1 9  and  20  Victoria,         ....       60,  388 

23  and  24  Victoria, 391 

of  Pennsylvania,  act  of  1705,  replevin,      .         67,  78 
27th  March,  1713,  limi- 
tations,    .         .         .146 
21st  March,  1772,  dis- 
tress, replevin  bonds, 
108,121,154,157,167,196, 
243,  267 

29 


436 


INDEX. 


Statutes  of  Pennsylvania,  act  of  3d  April,  1T19,  replevin 

of  goods   in   execu- 
tion, .         .       92,  24T 
3d  April,  1804,     .         .186 
6tb  April,  1802,    .         .186 
act  13th  April,  1807,  estrays,       93 
22d    March,   1817,   horse- 
racing,  ...       93 
25      March,      1825,     dis- 
tresses, .         .         .173 
24th  FeljrTiary,  1834,  exe- 
cutors, .         .        .         .174 
11th  April,  1848,  married 

women,  judgments,    124,295 

April  10,  1862,  .         .     206 

15th  May,  1871,        .        .     108 

10th  April,  1873,      .     300,303 

revised,  of  New  York,         .         .        86,  114,  301,  309 

code  of  procedure,     .        .        .         .71 

of  Massachusetts,  ....       86,  254 

.  186 
.  184 
.  125 
.  176 
81,84 
.     205 

.  129,  212 
.     105 

.  106,  108 
.     189 


Taxes,  payment  of,  may  be  pleaded. 

Tenant  may  not  dispute  landlord's  title,  . 
in  common,  replevin  by, 
avowry  by,    ..... 

Tender  of  amends, 

to  whom  to  be  made, 

Tennessee, 

Title  to  real  estate  cannot  be  tried  in  replevin, 
may  incidentally,      .... 

Trial, 


Venue,       ....... 

Verdict  under  17  Chas.  2d,       .         . 

for  plaintiff  at  common  law, 

for  defendant,      .... 

effect  of  verdict  and  judgment   between   same 
parties, 


.  129 

.  211 

210,  211 

.  211 


20S 


IK"DEX. 


437 


Vermont,  replevin  in, 

Virginia,  replevin  in, 

Wisconsin,         ••..... 
Withernam.     See  Writ  of. 

Witness, 

Writ  de  proprietate  probanda, 

(For  forms,  see  Appendix  I.,  p.  315.) 

one  not  party  to  the  replevin  not  entitled  to, 

pending,  propertj'  remained  with  defendant, 

when  not  used, 

of  inquiry,  where  to  be  issued,         .         .      221, 
when  not, 

of  recaption,     .         .         . 

of  reprisal,        .... 

of  replevin.     See  Replevin. 

in  personam,  as  well  as  in  rem, 

when  returnable, 

what  sum  prothonotary  may  charge  for, 

how  served,       .... 

how  delivery  must  be  made,     . 

whether  a  justification  in  an  action  of  trespass, 

fees  for,    ..... 

of  second  deliverance, 

of  withernam,  .... 

where  not  in  use,       .         .        71, 
used  in  Massachusetts, 


52,67 
53,  07 

.     129 

.     204 
61,  62 

.       03 

.       64 

.       60 

229,  230 

227,  251 

66,  70 

254,  411 

110 

no 

110 

110 

113 

118,119 

.     112 

70,71 

58,  64 

250,  254 

254,  411 


THE     END. 


J 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


